CROSSOVER: Child-Abuse Outcry Evidence: Multiple Witnesses May Address Different Acts, and Duplicative Admission Can Be Harmless

Perryman v. State, 01-24-00938-CR, October 27, 2026.

On appeal from 209th District Court, Harris County, Texas

Synopsis

Assuming that the trial court erred by admitting testimony from a second outcry witness under article 38.072, the First Court of Appeals held that the error was harmless under Texas Rule of Appellate Procedure 44.2(b). The child testified without objection to the same or substantially similar acts of sexual abuse; exact duplication between the child’s testimony and the outcry testimony was unnecessary.

Relevance to Family Law

Although Perryman is a criminal case, its evidentiary and preservation principles have direct application in divorce and SAPCR proceedings involving allegations of child abuse. Family lawyers frequently confront several accounts of the same alleged conduct through the child, parents, relatives, therapists, forensic interviewers, medical professionals, and Department of Family and Protective Services personnel. The central appellate lesson is that excluding one source—or proving that one source was admitted erroneously—may not produce reversal when substantially similar evidence reached the factfinder elsewhere without a preserved objection.

Article 38.072 and Texas Rule of Appellate Procedure 44.2(b) govern the criminal proceeding in Perryman and do not directly control a civil family-law appeal. In a SAPCR, counsel should instead consider Texas Family Code section 104.006, the Texas Rules of Evidence, and the civil harm standard in Texas Rule of Appellate Procedure 44.1. Nevertheless, the same practical problem remains: cumulative, unobjected-to evidence can defeat the required showing that an evidentiary ruling probably caused the rendition of an improper judgment.

Family Law Crossover

The procedural mechanism at issue is the admission of a child’s account through another witness, followed by appellate review of whether any erroneous admission affected substantial rights. Article 38.072 now expressly permits more than one outcry witness when each witness describes different conduct by the defendant. Perryman further establishes that, even when the admission of an additional outcry witness is assumed erroneous, the error may be harmless if the child later provides the same or substantially similar account without objection.

A comparable issue may arise in a Texas SAPCR when a child’s alleged-abuse statement is offered under Family Code section 104.006 and related evidence is also presented through a forensic interviewer, counselor, physician, relative, DFPS investigator, or the child. Section 104.006 has its own requirements, including a reliability determination and statutory conditions addressing the child’s availability, testimony, and corroboration. The family-law court also must consider hearsay, expert-testimony, authentication, Rule 403, and preservation requirements independently for each item of evidence.

The crossover is therefore procedural rather than statutory. A family lawyer challenging repeated accounts must identify the legal defect applicable to each witness or exhibit, secure a ruling, and object when materially similar evidence is later offered. On appeal, the governing civil standard is Rule 44.1—not criminal Rule 44.2(b)—but cumulative admission may still make it difficult to demonstrate harmful error.

Case Summary

Fact Summary

Larry Perryman Jr. was charged with continuous sexual abuse of his stepdaughter, A.A. The indictment alleged that he committed at least two acts of sexual abuse during a three-year period while A.A. was younger than fourteen.

At trial, A.A. testified that Perryman repeatedly forced her to perform oral sex over several years, beginning when she was approximately eight or nine years old. She described Perryman ejaculating in her mouth and her spitting into a sink. She also testified to other conduct, including Perryman touching her vagina under her clothing.

The State presented two outcry witnesses: A.A.’s grandmother and Caitlin Howell, a forensic interviewer with the Harris County Children’s Assessment Center. Howell related disclosures made during A.A.’s forensic interview. According to Howell, A.A. reported repeated forced oral sex between approximately ages eight and eleven, described where Perryman ejaculated, and disclosed other forms of sexual contact.

Perryman disputed the allegations and testified in his own defense. The jury found him guilty and assessed an 85-year prison sentence.

On appeal, Perryman challenged the admission of Howell’s testimony as an additional outcry witness. He argued, among other things, that Howell’s testimony was not completely duplicative of A.A.’s testimony and that Howell’s status as a forensic interviewer made her account unusually influential. He also characterized the testimony as improperly bolstering A.A.’s credibility.

Issues Decided

• Whether the admission of Howell’s testimony as an additional outcry witness constituted reversible error under Code of Criminal Procedure article 38.072.

• Whether any assumed error affected Perryman’s substantial rights when A.A. testified without objection to the same or substantially similar acts.

• Whether harmlessness required Howell’s testimony and A.A.’s testimony to be completely duplicative.

• Whether Howell’s experience as a forensic interviewer made the assumed evidentiary error harmful.

• Whether Perryman preserved an independent objection that Howell’s testimony improperly bolstered A.A.’s credibility.

• Whether Perryman preserved his complaint concerning the omission of an aggravated-sexual-assault lesser-included-offense instruction and whether the trial court erred by refusing that instruction.

Rules Applied

• Texas Code of Criminal Procedure article 38.072. The statute provides a hearsay exception for qualifying child-outcry statements. The opinion also noted that article 38.072 now expressly permits testimony from more than one outcry witness when each witness “describes different conduct by the defendant.”

• Multiple outcry witnesses. The Court of Criminal Appeals and Texas intermediate appellate courts have recognized that more than one witness may qualify when the witnesses address different events or conduct. See Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011); Guzman v. State, 591 S.W.3d 713, 722 (Tex. App.—Houston [1st Dist.] 2019, no pet.); Polk v. State, 367 S.W.3d 449, 453 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d).

• Texas Rule of Appellate Procedure 44.2(b). Error in admitting outcry testimony is nonconstitutional. An appellate court must disregard nonconstitutional error that does not affect substantial rights.

• Cumulative-evidence harmlessness. Erroneous admission of outcry testimony is harmless when the same or substantially similar evidence is admitted elsewhere without objection. Lamerand v. State, 540 S.W.3d 252, 259–60 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d); Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d); Lewis v. State, 693 S.W.3d 453, 468 (Tex. App.—Houston [14th Dist.] 2023, pet. ref’d).

• Complete duplication is unnecessary. The harmless-error inquiry asks whether the properly admitted evidence was the same or substantially similar, not whether the accounts were identical in every detail.

• Preservation of evidentiary complaints. An objection based solely on article 38.072 and hearsay does not necessarily preserve a separate complaint that evidence constitutes improper bolstering.

• Bolstering and harm. Even when credibility-reinforcing evidence is improperly admitted, the error remains subject to harmless-error review. Rousseau v. State, 855 S.W.2d 666, 681 (Tex. Crim. App. 1993).

Application

The court assumed for purposes of the appeal that admitting Howell as an additional outcry witness was erroneous. It did not need to decide that predicate question because A.A.’s own testimony rendered any assumed error harmless.

Howell testified that A.A. disclosed repeated forced oral sex beginning when she was approximately eight years old and continuing for several years. Howell also recounted details about ejaculation and other sexual contact. When A.A. testified, she described the same pattern of abuse in the same basic terms. Her testimony was admitted without objection.

The accounts did not align perfectly. A.A. was eleven at the time of the forensic interview and fifteen when she testified. Some details differed, including her description of an incident during a car ride. Those variations did not prevent a finding of substantial similarity. The principal allegations—the nature of the sexual act, its repetition, the relevant ages, and several specific details—were before the jury through A.A.’s unobjected-to testimony.

The court rejected Perryman’s contention that harmlessness required complete duplication. Under Lamerand, general sameness or substantial similarity is sufficient. Indeed, the court observed that differences between the child’s outcry and trial testimony can create credibility conflicts for the jury and may work against, rather than invariably bolster, the child’s account.

Howell’s professional experience did not alter the analysis. She testified that a forensic interviewer does not determine whether abuse occurred, does not decide whether the child is truthful, and could not state what actually happened. Thus, her testimony did not amount to an expert endorsement of A.A.’s credibility.

Perryman also had not preserved bolstering as an independent ground for exclusion because his trial objection rested on article 38.072 and hearsay. Even assuming preservation and error, the court concluded that any bolstering was harmless because Howell disclaimed any ability to assess truthfulness, A.A. testified before the jury, and the jury could evaluate her credibility directly.

Holding

The court held that any error in admitting Howell’s outcry testimony was harmless under Texas Rule of Appellate Procedure 44.2(b). A.A.’s unobjected-to trial testimony described the same or substantially similar sexual abuse, and complete duplication was not required.

The court further held that Howell’s status as a forensic interviewer did not establish harm. Howell did not testify that A.A. was truthful or that the alleged abuse had occurred.

The court concluded that Perryman did not preserve bolstering as an independent ground for excluding Howell’s testimony. It additionally determined that any assumed bolstering error was harmless on the record presented.

On the charge issue, the court held that Perryman had not preserved his complaint concerning the absence of an aggravated-sexual-assault lesser-included-offense instruction and that the trial court did not err by failing to submit the instruction. The judgment of conviction was affirmed.

Practical Application

Map the evidence by alleged act, not merely by witness. When several witnesses will recount a child’s statements, prepare a matrix identifying the conduct described, the date or period, the location, the statement’s recipient, the applicable hearsay theory, and any material details. That analysis helps determine whether the witnesses are truly cumulative or are addressing different acts.

Do not assume that excluding one witness will eliminate the allegation. In a custody trial, substantially similar evidence may come through the child, a parent, a forensic interviewer, medical records, counseling records, DFPS records, or admissions by a party. An appellate challenge to one item may be immaterial if the same proposition entered through another source without objection.

Preserve each distinct evidentiary ground. A hearsay objection does not automatically preserve objections based on improper expert opinion, lack of reliability, authentication, Rule 403, or an opinion on credibility. Counsel should articulate each applicable ground and obtain a ruling.

Renew objections when cumulative evidence is offered. A successful objection to the first account does not preserve error concerning later testimony or exhibits. Conversely, allowing the child or another witness to recount substantially the same conduct without objection can undermine the harm analysis even if an earlier objection was correct.

Use a running objection or obtain an express ruling when appropriate. Repeated testimony about abuse can make contemporaneous objections difficult and potentially disruptive. Counsel may request a running objection, but the record should define its scope by witness, subject, and legal ground.

Separate statutory child-hearsay requirements from expert admissibility. Admission of a child’s statement under Family Code section 104.006 does not necessarily resolve whether a forensic interviewer may offer expert opinions under Rules 702–705. The court should separately analyze qualifications, reliability, relevance, and whether the proposed opinion improperly comments on credibility.

Develop the civil harm record. A family-law appeal ordinarily proceeds under Texas Rule of Appellate Procedure 44.1. Counsel should explain why the challenged evidence was qualitatively different from other evidence, why it materially affected conservatorship, possession, protective restrictions, or termination findings, and why the remaining evidence did not render the error harmless.

Treat inconsistencies strategically. Variations among a child’s interview, trial testimony, medical history, and reports to relatives may bear on weight and credibility. Depending on the record, those differences can either distinguish the challenged evidence for harm purposes or demonstrate that multiple accounts did not merely repeat and reinforce one another.

Checklists

Before Offering a Child’s Statement

• Identify the precise statement and the conduct it describes.
• Determine whether Family Code section 104.006 applies.
• Confirm the child’s age when the statement was made.
• Analyze whether the time, content, and circumstances indicate reliability.
• Determine whether the child will testify or otherwise be available as permitted by law.
• If the child is unavailable, identify corroborative evidence and the basis for unavailability.
• Provide any notice required by the applicable statute or pretrial order.
• Identify each independent hearsay exception or nonhearsay purpose.
• Address authentication for recordings, reports, and interview materials.
• Obtain the required findings and rulings on the record.
• Separately address expert-testimony requirements if the sponsoring witness will offer opinions.

Before Challenging Repeated Abuse Evidence

• Create a witness-by-witness chart of every anticipated abuse account.
• Compare the alleged acts, time periods, locations, and material details.
• Determine whether each witness addresses different conduct or merely repeats another account.
• Identify objections based on hearsay, statutory noncompliance, Rule 403, expert reliability, authentication, and improper credibility opinions.
• File a motion in limine, but do not rely on it as a substitute for a trial objection.
• Request a hearing outside the jury’s presence when required or strategically appropriate.
• Obtain an express ruling on every ground asserted.
• Request a running objection when repeated testimony will cover the same subject.
• Renew or clarify the objection when a new witness, exhibit, or legal theory is presented.

Preserving an Expert or Bolstering Complaint

• Object specifically to any opinion that the child is truthful.
• Distinguish a hearsay objection from an objection to improper credibility testimony.
• Challenge the expert’s qualifications, methodology, fit, and permissible scope when applicable.
• Identify whether the witness is explaining interview methodology or endorsing the allegation.
• Ask the court to limit the witness from stating that abuse occurred or that the child was credible.
• Request a limiting instruction when evidence is admissible for only a restricted purpose.
• Secure a ruling on each objection rather than relying on a generalized reference to “bolstering.”

Protecting the Appellate Record

• Ensure that excluded evidence is preserved through an offer of proof or bill of exception.
• Ensure that admitted evidence and the objections to it are transcribed.
• Identify all substantially similar evidence elsewhere in the record.
• Object when substantially similar evidence is offered through another source.
• Explain why the challenged evidence is qualitatively more influential than other evidence.
• Connect the evidentiary ruling to a disputed conservatorship, possession, termination, or protective-order finding.
• Preserve objections to the charge or requested findings separately from evidentiary objections.
• Apply Texas Rule of Appellate Procedure 44.1 in a civil family-law appeal rather than relying solely on the criminal standard discussed in Perryman.

Citation

Perryman v. State, No. 01-24-00938-CR (Tex. App.—Houston [1st Dist.] Oct. 27, 2026, no pet. h.) (mem. op.).

Full Opinion

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