Isaias Benitez v. the State of Texas

majority opinion

Opinion issued August 31, 2026

In The

Court of Appeals

For The

First District of Texas

NO. 01-24-00801-CR

ISAIAS BENITEZ, Appellant

THE STATE OF TEXAS, Appellee

On Appeal from the 482nd District Court

Harris County, Texas

Trial Court Case No. 1704178

MEMORANDUM OPINION

Isaias Benitez was charged with aggravated sexual assault of a child under 14.

The indictment included the allegation that Benitez had been previously convicted

of indecency with a child. A jury found Benitez guilty of the lesser-included offense of indecency with a child by contact.1 The trial court found the enhancement

allegation true and sentenced him to life in prison.2

Benitez now asserts, in four issues on appeal, that the trial court’s judgment

is fatally flawed and should be reversed. We disagree and affirm.

Background

In 2016, A.D., her mother, and her brother moved into an apartment. Shortly

thereafter, Benitez, A.D.’s mother’s boyfriend, also moved in. Benitez lived in the

apartment until February 2020, when he and A.D.’s mother broke up. At the time

Benitez moved out in 2020, A.D. was 10.

While Benitez lived with A.D.’s family, Benitez’s son would visit on

occasion. In 2018, A.D. told her mother that Benitez’s son had touched her in

“places that he wasn’t supposed to touch,” including on her breasts and vagina, and

that he would touch her “butt” with his penis. After A.D. reported these allegations

to her mother, A.D. and Benitez’s son no longer had contact.

During this same time period as the abuse by Benitez’s son, A.D. testified that

Benitez also touched her inappropriately. She testified that Benitez would touch her

breasts and vagina while her brother was in the shower and her mother was at work.

TEX. PENAL CODE § 21.11(a)(1).

Id. § 12.42(c)(2).

A.D. also testified that Benitez would touch her vagina with his mouth.

According to A.D., Benitez would also “sit [her] on the edge of the bed and . . . he

put his penis in [her] mouth.” She testified that when his penis was in her mouth

sometimes “white stuff” would come out. And she testified Benitez would also give

A.D. candy after he abused her.

Benitez moved out of the apartment in February 2020 when he and A.D.’s

mother broke up. In July 2020, Benitez returned to the apartment for A.D.’s

mother’s birthday party. After seeing Benitez again, A.D. told her brother about

Benitez’s abuse. Because Benitez was spending the night at the apartment, A.D. and

her brother decided to wait until the next morning to talk to their mother. After

Benitez left the apartment the next morning, A.D. told her mother about Benitez’s

abuse.

Prior Conviction

At a hearing conducted outside the presence of the jury, the trial court ruled

that Benitez’s 2005 conviction for indecency with a child under the age of 17, for

which Benitez received five years in prison, “could have bearing on relevant matters,

including the character of the defendant and acts performed in conformity with the

character of the defendant, and was therefore admissible under Article 38.37. In his

first issue, Benitez contends that the trial court abused its discretion in admitting

evidence of this conviction because it should have been excluded under Rule 403.

A. Standard of Review

We review a trial court’s decision to admit or exclude evidence for abuse of

discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial

court abuses its discretion only if its decision is so clearly wrong as to lie outside the

zone within which reasonable people might disagree. Taylor v. State, 268 S.W.3d

571, 579 (Tex. Crim. App. 2008).

B. Applicable Law

Generally, “[e]vidence of extraneous offenses is not admissible at the guilt

phase of a trial to prove that a defendant committed the charged offense in

conformity with a bad character.” Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim.

App. 2011) (citing TEX. R. EVID. 404(b)). But Article 38.37, entitled “Evidence of

extraneous offenses or acts,” supersedes application of Rule 404(b), making

admissible extraneous offense evidence that Rule 404(b) does not. Lara v. State, 513

S.W.3d 135, 141 (Tex. App.—Houston [14th Dist.] 2016, no pet.); see TEX. CODE

CRIM. PROC. art. 38.37 §§ 1(b), 2(b).3

Article 38.37 allows the jury to consider, notwithstanding rule 404,

evidence that the defendant has committed a separate offense

[including indecency with a child] may be admitted in the trial of an

alleged offense [including indecency with a child] for any bearing the

evidence has on relevant matters, including the character of the

Article 38.37 is an evidentiary rule applicable to certain types of sexual abuse cases

including sexual assault of a child, indecency with a child, and continuous sexual

abuse of a child. See TEX. CODE CRIM. PROC. art. 38.37.

defendant and acts performed in conformity with the character of the

defendant.

TEX. CODE CRIM. PROC. art. 38.37 § 2(b).

However, the admission of evidence under article 38.37 “is limited by Rule

403’s balancing test, which permits admission of evidence as long as its probative

value is not substantially outweighed by its potential for unfair prejudice.” Bradshaw

v. State, 466 S.W.3d 875, 882 (Tex. App.—Texarkana 2015, pet. ref’d); see TEX. R.

EVID. 403.

C. Applicable Law

Benitez argues that evidence of his previous conviction should have been

excluded under Rule 403 because: (1) the remoteness of the conviction destroys its

probative value; (2) the absence of details about the offense amplified rather than

mitigated its prejudice; and (3) the State had no need for this evidence.4

The Waco Court of Appeals recently addressed the relationship between

Article 38.37 and Rule 403:

The admission of evidence pursuant to Article 38.37, Section 2(b) is

limited by Rule 403’s balancing test, which permits admission of

Benitez also argues that the limiting instruction given to the jury magnified the harm

because it explicitly told jurors they could consider the prior conviction for “the

character of the defendant” and “acts performed in conformity with the character of

the defendant.” But the limiting instruction provided by the trial court exactly tracks

the language of Article 38.37, § 2(b), which explicitly allows the jury to consider

“evidence that the defendant has committed a separate offense . . . for any bearing

the evidence has on relevant matters, including the character of the defendant and

acts performed in conformity with the character of the defendant.” TEX. CODE CRIM.

PROC. art. 38.37 § 2(b).

evidence as long as its probative value is not substantially outweighed

by its potential for unfair prejudice. Even so, Rule 403 “should be used

sparingly to exclude relevant, otherwise admissible evidence that might

bear on the credibility of either the defendant or complainant in such

‘he said, she said’ cases.” Because evidence of separate sexual offenses

is “probative on the issues of intent and a defendant’s character or

propensity to commit sexual assaults on children” if sufficient evidence

is provided regarding the extraneous offense, the probative value of

sexual offenses committed against other children is generally not

substantially outweighed by the “danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury,

undue delay, or needlessly presenting cumulative evidence.”

Deggs v. State, 646 S.W.3d 916, 925 (Tex. App.—Waco 2022, pet. ref’d) (internal

citations omitted).

In conducting a Rule 403 balancing test, the trial court must consider the

following non-exclusive factors: (1) how probative the evidence is, (2) the potential

of the evidence to impress the jury in some irrational, but nevertheless indelible way;

(3) the time the proponent needs to develop the evidence; and (4) the proponent’s

need for the evidence. Colone v. State, 573 S.W.3d 249, 266 (Tex. Crim. App. 2019).

The factors “may well blend together in practice.” Gigliobianco v. State, 210 S.W.3d

637, 642 (Tex. Crim. App. 2006). Upon our review, we find the Rule 403 factors

support the admission of evidence of Benitez’s previous conviction.

With regard to the first factor, we disagree with Benitez that the remoteness

of the conviction destroys its probative value. While remoteness may lessen the

probative value of extraneous-offense evidence,5 it “does not per se render an

extraneous offense irrelevant.” See Berg v. State, No. 01-22-00248-CR, 2023 WL

5616200, at *16 (Tex. App.—Houston [1st Dist.] Aug. 31, 2023, pet. ref’d) (quoting

Linder v. State, 828 S.W.2d 290, 297 (Tex. App.—Houston [1st Dist.] 1992, pet.

ref’d)). “Evidence either has probative value, or it does not.” Id. (quoting Newton v.

State, 301 S.W.3d 315, 318 (Tex. App.—Waco 2009, pet. ref’d)). Remoteness is

simply a factor to consider. See, e.g., Bradshaw v. State, — S.W.3d —, No. 03-23-00356-CR, 2026 WL 878911, at *7 (Tex. App.—Austin Mar. 31, 2026, no pet.);

West v. State, 554 S.W.3d 234, 239–40 (Tex. App.—Houston [14th Dist.] 2018, no

pet.).

And the “evidence of a separate sexual offense against a child admitted under

Article 38.37, Section 2(b) is probative of a defendant’s character or propensity to

commit sexual assaults on children.” Deggs, 646 S.W.3d at 925–26.6 Thus, evidence

reflecting that Benitez has a prior conviction for indecency with a child, however

remote, is still probative of his character or propensity to commit sexual assaults on

children. See Bradshaw, 2026 WL 878911, at *7; Berg, 2023 WL 5616200, at *17.

Accordingly, this factor weighs in favor of admission.

See Deggs v. State, 646 S.W.3d 916, 925 (Tex. App.—Waco 2022, pet. ref’d). 6

See also Alvarez v. State, 491 S.W.3d 362, 371 (Tex. App.—Houston [1st Dist.]

2016, pet. ref’d) (“[T]he Rule 403 balancing test normally will not favor the

exclusion of evidence of the defendant’s prior sexual assaults of children.”).

The second factor considers whether the evidence has the potential to

“irrationally impress” the jury. Benitez argues that the only evidence of his prior

conviction was the conviction itself and the failure to include any details about the

prior offense allowed the jury to “imagine the worst.” We disagree.

There were some limited details before the jury about the prior offense,

including that Benitez committed the offense when he was 18 years old, and that the

offense was second-degree indecency with a child—the exact charge for which he

was convicted in this case. And the lack of detail about the prior offense tends to

lessen any prejudice as there is no evidence that the extraneous offense was any more

heinous than the evidence pertaining to the charged offense. Cf. Berg, 2023 WL

5616200, at *17 (acknowledging that similarities between charged offense and

extraneous offense could lead to “potential that the jury may be unfairly prejudiced

by the defendant’s character conformity,” but still concluding that second factor

weighed in favor of admission where defendant did not demonstrate that evidence

of extraneous offense was more heinous than evidence of charged offense).7

Moreover, the court of criminal appeals has acknowledged that while

“sexually related bad acts and misconduct involving children are inherently

inflammatory . . . the plain language of Rule 403 does not allow a trial court to

See also id. (holding evidence of other children defendant abused was not unfairly

prejudicial because defendant did not identify any particular facts about other two

sexual assault that make them uniquely or unfairly prejudicial).

exclude otherwise relevant evidence when that evidence is merely prejudicial.”

Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013).

Here, Article 38.37 expressly authorized the admission of evidence showing

that Benitez committed separate sexual offenses against other children “for any

bearing the evidence has on relevant matters, including the character of the

defendant and acts performed in conformity with the character of the

defendant.” TEX. CODE CRIM. PROC. art. 38.37, § 2(b). Nothing in the record

suggests that the limited evidence of the extraneous offense influenced the jury to

decide the case on an improper basis. See Bonnet v. State, No. 01-23-00086-CR,

2025 WL 554198, at *4 (Tex. App.—Houston [1st Dist.] Feb. 20, 2025, pet. ref’d)

(mem. op., not designated for publication); Alvarez v. State, 491 S.W.3d 362, 371

(Tex. App.—Houston [1st Dist.] 2016, pet. ref’d). Accordingly, this factor also

weighs in favor of admission.

With respect to the third factor, testimony related to Benitez’s prior conviction

did not consume an inordinate amount of time or repeat evidence that had already

been admitted at trial. At trial, Detective L. Littler with the Houston Police

Department testified that he was involved in the investigation of this case and

discovered that Benitez has a prior conviction for indecency with a child. The State

introduced as an exhibit the judgment of conviction for that offense, which reflects

that the offense occurred in March 2023 when Benitez was 18. On cross9

examination by Benitez’s counsel, Detective Littler admitted that he called Benitez

a “predator” when he informed A.D.’s father about Benitez’s prior conviction. Little

else was presented to the jury about this prior conviction—it was mentioned to the

jury on less than 20 pages of the over 1,300-page reporter’s record of trial. See Berg,

2023 WL 5616200, at *17; Deggs, 646 S.W.3d at 927.8 Accordingly, this factor

weighs in favor of admission.

The fourth factor pertains to the State’s need for the evidence. Benitez argues

that the State had no need for the evidence because it had A.D.’s direct testimony

and other corroborating evidence. But the Legislature has acknowledged that

because of the nature of child sex offenses, there is typically very little

evidence to assist prosecutors with proving their cases. Victims,

especially children, are many times so scarred by the physical and

emotional trauma of the event that there are often long delays in the

reporting of the crime, and these delays can lead to the destruction or

deterioration of what little physical evidence exists. As a result, the

primary piece of evidence in most child sexual abuse cases is a

traumatized child.

Bradshaw, 466 S.W.3d at 884 (citing Senate Comm. on Criminal Justice, Bill

Analysis, Tex. S.B. 12, 83rd Leg. R.S. (2013)). “In the absence of the extraneousoffense evidence, this becomes a ‘he said, she said’ case.” Id.

See also Bradshaw v. State, — S.W.3d —, No. 03-23-00356-CR, 2026 WL 878911,

at *8 (Tex. App.—Austin Mar. 31, 2026, no pet.) (“Because the presentation of

extraneous-offense evidence consumed a very small portion of the State’s evidence

at Bradshaw’s trial, it is unlikely that the jury was distracted from consideration of

the indicted offense.”).

Here, there was no physical evidence in support of A.D.’s allegations against

Benitez and there were no eyewitnesses. See Berg, 2023 WL 5616200, at *17;

Deggs, 646 S.W.3d at 926. And Benitez sought to discredit A.D. by pointing out

inconsistencies or changes in her statements, her inability to recall details, and that

she was angry at Benitez for making her do chores. “We are mindful that Rule 403

should be used sparingly to exclude relevant, otherwise admissible evidence that

might bear on the credibility of either the defendant or complainant in such ‘he said,

she said’ cases [involving sexual assault].” Deggs, 646 S.W.3d at 926 (quoting

Bradshaw, 466 S.W.3d at 883–84). Accordingly, this factor likewise weighs in

favor of admission.

We thus conclude that the trial court could have reasonably concluded the

probative value of evidence of Benitez’s prior conviction was not substantially

outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403. Based on all

of the foregoing, we therefore hold that the trial court did not abuse its discretion in

admitting this evidence.

We overrule Benitez’s first issue.

Statements Made for Medical Diagnosis or Treatment

In his second issue, Benitez maintains that the trial court abused its discretion

in admitting the testimony of Dr. Marcella Donaruma, a doctor at the Children’s

Assessment Center (CAC) who conducted a sexual assault exam of A.D. in October

2020, under the exception to the hearsay rule for statements made for the purposes

of medical diagnosis or treatment. See TEX. R. EVID. 803(4).

A. Standard of Review and Applicable Law

Rule 803(4) of the rules of evidence provides an exception to the hearsay rule

for statements “made for—and . . . reasonably pertinent to—medical diagnosis or

treatment” and “describing medical history; past or present symptoms or sensations;

their inception; or their general cause.” TEX. R. EVID. 803(4). This exception is

based on the assumption that the patient understands the importance of being truthful

with the medical personnel involved to receive an accurate diagnosis and treatment.

Burns v. State, 122 S.W.3d 434, 438 (Tex. App.—Houston [1st Dist.] 2003, pet.

ref’d).

In determining whether a trial court erred in admitting or excluding hearsay

evidence under this exception to the hearsay rule, “a reviewing court looks to see

whether the trial court clearly abused its discretion; before the reviewing court may

reverse the trial court’s decision, it must find the trial court’s ruling was so clearly

wrong as to lie outside the zone within which reasonable people might disagree.”

Taylor, 268 S.W.3d at 579.

B. Analysis

At a hearing outside the presence of the jury, the trial court ruled that A.D.’s

medical records from the CAC, which contained statements from A.D. describing

the abuse, along with Dr. Donaruma’s testimony about those records and statements

were admissible under Rule 803(4).

At trial, Dr. Donaruma testified that she interviewed A.D. before conducting

a physical exam and read portions of that interview to the jury. During the interview,

A.D. stated that Benitez “would make her get naked and he would then put his penis

in her mouth” and that he “touches [her] private part” with his hands. A.D. also

stated that Benitez would make her touch his “middle part” with her hands and that

sometimes “white stuff” would come out of it. A.D. stated that the white stuff would

“go on [her] tummy or [Benitez] would put it in [her] mouth and tell [her] to swallow

it.”

Here, Benitez argues that A.D.’s statements to Dr. Donaruma were not

admissible under Rule 803(4) because the examination’s primary purpose was

forensic, not for medical treatment, and served law enforcement’s investigative

needs, not A.D.’s medical needs. He also argues that they are inadmissible because

the State presented no evidence that A.D. understood the need to be truthful in her

statements to Dr. Donaruma. And, finally, he argues that A.D.’s statements

identifying Benitez as the perpetrator were not “reasonably pertinent” to any

treatment. We disagree.

Instead, we conclude that the record here supports the conclusion that A.D.’s

statements to Dr. Donaruma were made for the purpose of medical treatment. At

trial, Dr. Donaruma testified that her medical examinations of children who have

possibly been sexually assaulted consist of (1) a medical history, (2) a history of the

present illness, i.e., the inappropriate contact, (3) a physical exam, and (4) a “roundup,” of “what do we know, what did we learn, and what are we going to do,” which

could include “testing, medications, referrals, [or] follow-up visits, if needed.”

During the history of the present illness portion of the exam, as described

above, A.D. identified Benitez as her abuser and stated that he touched her private

part with his hands and would put his penis in her mouth. At the hearing conducted

outside the presence of the jury, Dr. Donaruma testified that the purpose of asking

the child questions about the history of the present illness is to “understand the type

of inappropriate contact . . . in order to formulate a treatment plan and to determine

what type of assessment should follow.” She explained that she asks these questions

to “understand what the risks are for transmitting infections,” as well as to

understand the consequences of sexual abuse on the child’s developmental and

mental health. And, in A.D.’s case because she had exposure to the “white stuff,”

Dr. Donaruma conducted testing for sexually transmitted diseases, including

syphilis, hepatitis, and HIV, which were all negative.

“The object of a sexual assault exam is to ascertain whether the child has been

sexually abused and to determine whether further medical attention is needed.”

Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort Worth 1999, pet. ref’d). Dr.

Donaruma testimony described above clearly demonstrates that this was the purpose

of the “history of the present illness” portion of her examination of A.D. Thus,

despite Benitez’s assertion to the contrary, we conclude that A.D.’s statements to

Dr. Donaruma “describing [Benitez’s] acts of sexual abuse are pertinent to [her]

medical diagnosis and treatment.” See id.

Furthermore, although Benitez argues that there was no evidence that A.D.

understood the need to be truthful in her statements to Dr. Donaruma, “there is no

requirement that a witness expressly state that the hearsay declarant recognized the

need to be truthful in her statements for the medical treatment exception to apply.”

Id. at 188. The court of criminal appeals has observed that “it seems only natural to

presume that adults, and even children of a sufficient age or apparent maturity, will

have an implicit awareness that [a] doctor’s questions are designed to elicit accurate

information and that veracity will serve their best interest.” Taylor, 268 S.W.3d at

589. Thus, the reviewing court must look to the record to determine if it supports a

conclusion that the declarant understood the importance of honesty in the context of

medical diagnosis and treatment. See id. (recognizing “the almost universal tendency

of courts under these circumstances to assay the record, not for evidence of such an

awareness, but for any evidence that would negate such an awareness”); Beheler, 3

S.W.3d at 188–89.

Benitez argues that A.D. “knowingly provided false information during the

medical examination,” which “definitively establishes she did not understand that

truthfulness was vital for medical treatment.” But we disagree with this

characterization of A.D.’s testimony. A.D. testified that she has “[n]ot always” said

that Benitez abused her first and that during Dr. Donaruma’s exam, she said it was

his son who abused her first. A.D. did not testify that she lied during Dr. Donaruma’s

exam, or that she knowingly provided false information. Rather, she testified only

that she “was mistaken” and “[i]t is, in fact, [Benitez]” who abused her first. That

she made a mistake in her recollection of the abuse during Dr. Donaruma’s

examination does not mean she did not understand the importance of being truthful.

And a review of the record demonstrates the opposite. As we explained

above, Dr. Donaruma is a medical doctor who works at the CAC, a facility that

serves “children and families who are going through the process of disclosure of

sexual abuse.” As part of her role at the CAC, she performs medical examinations

on children who are referred to the facility. She detailed the four steps involved in

these exams, as noted above. As part of the process, Dr. Donaruma first tries to get

to know the child before getting into the very personal questions. And she explained

that she asks open ended questions to ensure that the child does feel as if “there’s a

good answer or a bad answer.”

When testifying about A.D.’s interview specifically, Dr. Donaruma testified

that A.D. appeared cooperative and anxious during the interview, and that she made

good eye contact. She testified that there were times during the interview when A.D.

became tearful, after which they took a break and Dr. Donaruma “validated [A.D.’s]

feelings [and] offered reassurance.” Dr. Donaruma explained that during the

interview, A.D. was “very clearly” able to distinguish Benitez’s abuse from the

abuse by his son.

Dr. Donaruma testified that A.D. deferred the general physical exam, which

is a head-to-toe exam, but that she consented to the genital exam. Dr. Donaruma

testified that A.D. tolerated the exam well and that she did not see signs of injury,

infection, or other variations or conditions. And she testified that she concluded the

exam by conducting testing for sexually transmitted diseases and referring A.D. to

counseling. Dr. Donaruma testified that, given that A.D. had “reported painful

contact,” it was “really valuable” to provide reassurance and to report to A.D. that

“everything was well and healthy.”

After reviewing the record, we conclude that it demonstrates that A.D. was a

child of sufficient age and apparent maturity to understand that she was at the CAC

because of the sexual assault and needed to be truthful during Dr. Donaruma’s

sexual-assault examination. See, e.g., State v. Sanchez, 722 S.W.3d 58, 71–72 (Tex.

App.—Fort Worth 2025, pet. ref’d) (reviewing entire record of child’s examination

by sexual assault nurse examiner, including nurse’s description of child and details

of her examination, and concluding that 11-year-old child was of sufficient age and

maturity to understand she needed to be truthful during sexual assault examination

and therefore child’s statements to nurse were admissible under Rule 803(4)).

Finally, we reject Benitez’s argument that A.D.’s statements identifying him

as the perpetrator were not “reasonably pertinent” to any treatment. While it is true

that many sexual assault exams gather evidence routinely used at trial, such as the

identity of the abuser and the nature of the assault, courts have found identity to be

pertinent to medical diagnosis and treatment in child sexual assault cases. See

Taylor, 268 S.W.3d at 591 (recognizing that abuser’s identity can be pertinent to

diagnosis or treatment “to discover the extent of the child’s ‘emotional and

psychological injuries’—particularly when the perpetrator might be a family or

household member and it is important to remove the child from the abusive

environment”).9

In this case, A.D. told Dr. Donaruma that Benitez, her mother’s boyfriend who

had lived with them for years, had abused her. Dr. Donaruma testified that in child

See also Hernandez v. State, No. 01-23-00037-CR, 2024 WL 3658056, at *7 (Tex.

App.—Houston [1st Dist.] Aug. 6, 2024, no pet.) (mem. op., not designated for

publication) (recognizing that identity of abuser as close family member can inflict

extensive psychological damage and holding that child’s statements to nurse

examiner, who testified that disclosing abuser’s identity is important to ensure

child’s safety when discharging them, identifying stepfather as abuser were

pertinent to medical diagnosis and treatment).

sexual abuse cases, it is important to find out the identity of the alleged abuser for

“the safety and protection of the child,” because many times the abuser may be

someone who shares their home and it is important to be certain the child is not still

sharing a home with that person upon release. And she testified that, following her

exam, she referred A.D. to counseling because she “manifested a lot of symptoms in

the evaluation,” including “trying so hard to be protective of her mother . . . and

crying about the burden of this whole experience.”

As discussed in Taylor, the identity of a perpetrator as a close family member

can inflict extensive psychological damage. See Taylor, 268 S.W.3d at 591. That

damage and trauma, in turn, can necessitate counseling or other mental health

treatment as Dr. Donaruma recommended for A.D. here. Thus, we conclude that

A.D.’s statements to Dr. Donaruma identifying Benitez as her abuser were pertinent

to her medical diagnosis and treatment. See id.; see also Hernandez v. State, No. 01-23-00037-CR, 2024 WL 3658056, at *7 (Tex. App.—Houston [1st Dist.] Aug. 6,

2024, no pet.) (mem. op., not designated for publication).

For the above reasons, we conclude that A.D.’s statements to Dr. Donaruma

identifying Benitez as her abuser and describing the nature of the abuse were for the

purpose of medical diagnosis and treatment and, therefore, were properly admitted

under Rule 803(4).

We overrule Benitez’s second issue.

Reliability of Outcry Statement

In his third issue, Benitez argues that the trial court abused its discretion in

finding A.D.’s outcry statement to her mother reliable and admitting this testimony

under Article 38.072.

A. Standard of Review and Applicable Law

The Texas Code of Criminal Procedure allows admission of certain hearsay

testimony in the prosecution of sexual offenses against minors. TEX. CODE CRIM.

PROC. art. 38.072. The statute 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.” Id. § 2(a)(3).

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) (internal quotations and citations

omitted).

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 v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990). We will not reverse the

trial court’s decision to admit such testimony unless it falls outside the zone of

reasonable disagreement. See id.

B. Analysis

Here, at the Article 38.072 hearing, A.D.’s mother testified that the morning

after her birthday party in July 2020, A.D. told her that Benitez “would bring her to

the restroom when I was at work and he would touch her middle part and put his

penis into her mouth.” A.D. further told her that Benitez would “offer her sweets or

candy and he would show himself to her.”

Benitez argues that the trial court abused its discretion in admitting this

testimony because the delay in the outcry, the content of the statement, and A.D.’s

inability to clearly recall the circumstances of the disclosure all call into question the

outcry’s reliability.

But assuming without deciding that the trial court abused its discretion in

admitting A.D.’s mother’s outcry testimony, we conclude that 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 in admitting hearsay under

Article 38.072 is harmless if the same or similar evidence is admitted without

objection at another point in the trial. See 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).

A.D. testified at trial in detail about Benitez’s abuse, without objection. She

testified that Benitez would lead her into her mother’s room, where he would have

her lie on the bed and he would touch her breasts and vagina. She testified that

Benitez would touch her vagina with his hands, and that sometimes her clothes were

on and sometimes they were off. She testified that she felt “uncomfortable” when

Benitez would touch her vagina.

A.D. also testified that Benitez would touch her vagina with his mouth. She

described feeling “very uncomfortable” when Benitez touched her vagina with his

mouth, because it was “very wet and wasn’t a good feeling.” She also testified that

Benitez would “sit [her] on the edge of the bed and . . . he put his penis in [her]

mouth.” She testified that when his penis was in her mouth sometimes “white stuff”

would come out. And she testified Benitez would also give A.D. candy after he

abused her.

A.D.’s testimony and her mother’s testimony both established that Benitez

sexually abused A.D. by touching her vagina and by putting his penis in her mouth.

Because the same evidence was admitted without objection at other points during

the trial, we conclude that any error in admitting A.D.’s mother’s outcry testimony

was harmless. See Lamerand, 540 S.W.3d at 259–60; Nino, 223 S.W.3d at 754.

We overrule Benitez’s third issue.

Expert Testimony

In his fourth issue, Benitez claims that the trial court improperly qualified Dr.

Crowson as an expert in substance abuse and memory effects, despite her lack of

expertise in toxicology, pharmacology, or addiction, which “created a credibility

spillover that improperly bolstered all of her testimony” in violation of Rule 702.

We disagree. Although the trial court generally agreed that Dr. Crowson was

qualified, it explicitly ruled that she “shall not testify or be asked to testify about

substance abuse affecting memory since there’s no allegation that the minor in this

case was using any substance.” And Benitez admits that Dr. Crowson did not testify

about substance abuse or its effect on memory during trial.

Accordingly, because Dr. Crowson was not permitted to testify—and did not

testify—about the complained-of subject matter, we hold that Benitez has not

identified any error for our review. See TEX. R. APP. P. 33.1; Hicks v. State, 718

S.W.3d 554, 562 (Tex. App.—Houston [14th Dist.] 2025, pet. ref’d) (“The trial court

must make an adverse ruling; ‘that is, it must be clear from the record the trial judge

in fact overruled the defendant’s objection or otherwise error is waived.’” (quoting

Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991)).

We overrule Benitez’s fourth issue.

Conclusion

We affirm the trial court’s judgment.

Do not publish. TEX. R. APP. P. 47.2(b).

Terry Adams

Chief Justice

Panel consists of Chief Justice Adams and Justices Guerra and Guiney.

Isaias Benitez v. the State of Texas

Authorities cited

Opinion · public domain