TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-05-00641-CR
David Hoover, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
NO. 3040865, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING
MEMORANDUM OPINION
David Hoover appeals his conviction by a jury of the offense of indecency with a
child by contact. See Tex. Penal Code Ann. § 21.11 (West 2003). The trial court assessed
punishment at 35 years in the Institutional Division of the Texas Department of Criminal Justice.
In seven points of error, appellant complains that the trial court unduly restricted testimony regarding
the outcry witness’s bias and motive and otherwise improperly admitted evidence. We affirm the
judgment of conviction.
FACTUAL BACKGROUND
The State’s evidence at trial showed that appellant lived in the same apartment
complex as A.M., the complainant who was seven years old at the time of the incident, her six-year-
old brother, O.M., and their mother, D.M. In the early evening of March 24, 2004, because her stove
was not working, D.M. sent the children to a friend’s apartment to get dinner. At some point, A.M.
and O.M. encountered appellant, who invited them into his apartment. The children watched
television, and appellant offered them some beans to eat in the kitchen. A.M. testified that while she
was in the kitchen appellant touched her “middle part” under her clothing.
D.M. testified that the children returned to her apartment with a man she did not
know. D.M. observed that the children’s pants were unzipped. Appellant asked her if she needed
any help fixing her car and if she was married. In her children’s presence, appellant told her, “You
have good kids.” He then left the apartment.
Because the children seemed scared and “acted like they were in trouble,” D.M. asked
them what had happened. As A.M. began crying, she told her mother that the children had been in
the man’s apartment and that he had “pulled her pants down and was messing with her between her
legs.” D.M. reported the incident to the police that evening. Two weeks later, A.M. and O.M. were
interviewed at the Center for Child Protection by Cyndi Cantu, a forensic interviewer. A.M. told
Cantu that appellant had touched her on her “middle part” that she uses “to pee with.” D.M. and the
children later identified appellant in a photographic line-up.
A defense witness who lived three doors away from appellant testified that he was
visiting with appellant on the evening in question. Appellant’s door was open and the children “just
came up to the apartment.” The neighbor testified that he saw the children, watched them the whole
time they were in the apartment, and never saw appellant touch either child.
ANALYSIS
Appellant contends that the trial court erred in (i) restricting cross-examination of
D.M., A.M.’s mother, who was the outcry witness, (ii) allowing the admission of inadmissible
2
hearsay and then refusing a limiting instruction, (iii) inadvertently allowing the playing of an
inadmissible portion of a videotaped statement, and (iv) allowing testimony by a witness “expressing
an opinion on the truthfulness of the complainant’s allegations.” We review a trial court’s decision
to admit or exclude evidence using an abuse of discretion standard. Mozon v. State, 991 S.W.2d
841, 846-47 (Tex. Crim. App. 1999); Montgomery v. State, 810 S.W.2d 372, 379-80
(Tex. Crim. App. 1990) (op. on reh’g).
Limitation on Cross-Examination
In his first point of error, appellant asserts that his right to confront and cross-examine
witnesses under the Sixth Amendment of the Constitution was violated when the trial court unduly
restricted his cross-examination of D.M., the complainant’s mother and the State’s outcry witness.1
Specifically, appellant sought to cross-examine D.M. about her application to the Attorney General
for crime victim’s compensation and a subsequent request of the Attorney General’s office for a
refund of the money because D.M. had failed to provide receipts as required showing that the money
was used for moving expenses. Appellant sought to question D.M. and to offer documentary
evidence, including the written application for compensation and the Attorney General’s letter
request. He urged that the evidence was admissible to show bias or motive under Texas Rule of
Evidence 613. See Tex. R. Evid. 613. The State urged that the evidence was improper impeachment
1
Although the State urges that it “is not entirely clear that this claim was preserved for
appellate review,” we conclude that the parties were aware of the nature of the complaint and that
it was preserved. See Maynard v. State, 685 S.W.2d 60, 65 (Tex. Crim. App. 1985).
3
and inadmissible under Texas Rules of Evidence 608 and 609 because it was unadjudicated conduct.
See Tex. R. Evid. 608-09.
The Sixth Amendment guarantees the right of an accused in a criminal prosecution
to confront the witnesses against him. U.S. Const. amend. VI. “Confrontation means more than
being allowed to confront the witness physically.” Davis v. Alaska, 415 U.S. 308, 315 (1974). Its
fundamental purpose is to secure for the defendant the opportunity to cross-examine the accuser.
Id. at 315-16.
Both rules 608 and 613(b) address impeachment of witnesses. Tex. R. Evid.
608, 613(b). Rule 608 allows the credibility of a witness to be attacked or supported in the form of
opinion or reputation testimony only by reference to the witness’s character for truthfulness
or untruthfulness and only after the character of the witness for truthfulness has been attacked.
Tex. R. Evid. 608(a). Rule 608(b) expressly bars impeaching a witness’s general character
for truthfulness with specific instances of conduct other than conviction of a crime as provided
in rule 609. Tex. R. Evid. 608(b). Nor may specific instances of conduct be proved by extrinsic
evidence. Id.
In contrast, rule 613(b) permits impeaching a witness by “proof of circumstances or
statements showing bias or interest” on the part of the witness. Tex. R. Evid. 613(b). Unlike rule
608(b), rule 613(b) does not expressly bar the use of specific instances of conduct to show bias or
interest. Compare Tex. R. Evid. 608(b), with Tex. R. Evid. 613(b). Rule 608 does not bar evidence
of specific acts not resulting in conviction as an impeachment device in all instances. It proscribes
such proof only when offered for a particular purpose—to establish a witness’s character for
4
veracity—so the jury may infer that he is more or less likely to be testifying truthfully. Specific acts
may, however, be proved for other purposes. For example, a witness’s acts may reveal a bias toward
or against one of the litigants. 1 Steven Goode et al., Texas Practice: Guide to the Texas Rules
of Evidence: Civil and Criminal § 608.1 (3d ed. 2002). Rule 608 does not address attempts to
impeach a witness through bias. Id. (citing Dixon v. State, 2 S.W.3d 263, 271 (Tex. Crim. App.
1999) (op. on reh’g)).
Thus, rule 608 addresses a witness’s general character for truthfulness and rule 613(b)
addresses a witness’s trustworthiness in the particular case because of some bias or interest. Unlike
attacks on a witness’s character for truthtelling, bias or interest may arise when the witness has a
financial stake in the outcome of the case. E.g., Cox v. State, 523 S.W.2d 695, 700 (Tex. Crim. App.
1975) (admitting evidence that prosecution witness filed civil action against accused); Sterns v. State,
862 S.W.2d 687, 690 (Tex. App.—Tyler 1993, no pet.) (allowing testimony that prosecution witness
was informant who was paid fifty dollars per case).
In a hearing outside the presence of the jury, appellant sought to show that D.M.
applied for and received benefits from the Crime Victims’ Compensation Program of the Texas
Attorney General’s Office. He argued that the application, a victim impact statement, and a letter
requesting repayment were relevant to show that D.M. sought financial gain as a consequence of the
incident. Appellant sought to show that D.M. submitted a victim impact statement containing a false
5
statement that she was evicted because the apartment management believed appellant to be innocent.
At the hearing, D.M. admitted that she was evicted for nonpayment of rent.2
At the conclusion of the hearing, the trial court concluded that the evidence had
negligible probative value and allowed appellant to inquire only whether D.M. “made a claim to
crime victim’s compensation as a result of this prosecution and has she received money.” The court
excluded the “extraneous letters” and “what is going on behind it.” On cross-examination, D.M.
then testified that she made a claim for victim compensation based on the facts of the case and that
she sought money so she could move: “I didn’t know they was going to give you money like that.
I just know they would help you move. That’s all I know.” Appellant argues that false statements
given in connection with an application for victim compensation subjects the applicant to criminal
prosecution for perjury.
The trial court did not abuse its discretion in excluding a portion of the proffered
evidence. There was no showing that the validity of D.M.’s claim hinged upon the pursuit or
outcome of the prosecution. D.M. evidently learned of and filed an application after she reported
the incident to law enforcement. She testified that she “got the paperwork from the advocacy center”
where A.M. gave her videotaped statement. The benefits were paid to D.M. a year before trial. The
proffered evidence does not show a tendency to lie, and it is only marginally probative on the issue
of bias or motive. Moreover, the record reflects that D.M. was effectively impeached because she
was incarcerated at the time of trial serving a sentence for forgery and she had given custody of her
2
The assistant manager of the apartment complex also testified at trial that D.M. was evicted
for nonpayment of rent.
6
children to a relative. We conclude that the scope of permissible cross-examination was appropriate
because the degree of possible relevance of the evidence as presented was so low as to be within the
“zone of reasonable disagreement,” and we thus decline to find that the trial court abused its
discretion by excluding the testimony.
Assuming the trial court erred by refusing to permit appellant to cross-examine D.M.
concerning the application, we are satisfied that any error was harmless. See Delaware v. Van
Arsdall, 475 U.S. 673, 684 (1986). D.M. admitted before the jury that she made the claim in order
to move from the complex, that she had not made rent payments on time, that an eviction lawsuit had
been filed against her, that she had filed a civil suit against the apartment complex based on
allegations of sexual abuse, and that she was incarcerated at the time of trial for forgery. There is
no evidence that she influenced her daughter’s testimony or pressured either child to fabricate
allegations. We overrule appellant’s first point of error.
Prior Consistent Statements
In his second, third and fourth points of error, appellant claims the trial court erred
in allowing Cyndi Cantu, a forensic interviewer with the Center for Child Protection, to testify to
prior consistent statements made by the complainant in her videotaped interview and that the
trial court erred in failing to give a limiting instruction and a further instruction in the charge.
Because Cantu was not the outcry witness, appellant objected to her testimony about A.M.’s prior
consistent statements.
The controversy arises from discrepancies in A.M.’s testimony, which provides
context for Cantu’s testimony. At trial, A.M. testified that the assault occurred as she was standing
7
in appellant’s kitchen. She testified that she was wearing shorts, that the shorts “stayed up,” and
that appellant touched her “middle part” under her panties for a “short time.” On cross-examination,
defense counsel elicited testimony that A.M. had stated during her interview with Cantu that
the incident happened at her mother’s house and that she was wearing “pants.” Defense counsel
played portions of A.M.’s videotaped interview. The following testimony then occurred during
questioning of A.M.:
Q [Defense Counsel]: Do you remember that you spoke with a lady named Cyndi
Cantu at the Children’s Advocacy Center?
A [A.M.]: Yes.
Q [Defense Counsel]: And you spoke to her about two weeks after this all was
supposed to have happened, right?
A [A.M.]: Yes.
Q [Defense Counsel]: Okay. And when you spoke to her, you told her that this all
happened at your mom’s house. Do you remember that?
A [A.M.]: No.
Q [Defense Counsel]: Do you remember that you made a videotape with her, and
she asked you, where did this all happen, and you told her
that it happened at your mom’s house? Do you remember
that? Let me ask you this, [A.M.]: Do you remember a
short time ago, right here in this courtroom, you just looked
at a videotape?
A [A.M.]: Yes.
Q [Defense Counsel]: And do you remember seeing that portion of the videotape
where you were talking with Ms. Cantu?
A [A.M.]: Yes.
8
Q [Defense Counsel]: And do you remember telling her that it happened at your
mom’s house?
A [A.M.]: Yes.
Q [Defense Counsel]: Okay. So, that did happen. You did tell her that, right?
You saw that on the videotape?
A [A.M.]: It didn’t happen at my mother’s house.
Q [Defense Counsel]: It didn’t happen at your mother’s house?
A [A.M.]: No.
Q [Defense Counsel]: But you did tell Ms. Cantu that it happened at your mother’s
house, right? We looked at that together. Do you
remember that? Also, [A.M.], you told us that you were
wearing shorts when this was all supposed to have
happened. Do you remember telling the jury that?
A [A.M.]: Yes.
Q [Defense Counsel]: But you told Ms. Cantu that you were wearing pants. Do
you remember that? Do you remember looking at that on
the videotape?
A [A.M.]: Yes.
Q [Defense Counsel]: And what did you tell Ms. Cantu 13 days after this was
supposed to have happened? What did you tell her you
were wearing? [A.M.], you don’t have to think about it.
Just tell the jury what you saw.
A [A.M.]: They were like pants, but they were short like shorts.
Q [Defense Counsel]: So, you weren’t wearing pants; you were wearing shorts?
A [A.M.]: Jean shorts, pants.
Q [Defense Counsel]: You were wearing pants; is that right?
9
After the court sustained the State’s objection that defense counsel was misstating A.M.’s testimony,
A.M. testified, “It was like these pants, but they didn’t pass my knees.” Defense counsel then
asked that “those portions of the videotape be published to the jury.” On redirect examination,
the prosecutor sought to play A.M.’s statement on the videotape “about how it happened in
the kitchen and she was standing up.” These portions of the videotaped interview were played
without objection.
When the State then called Cantu to testify, the prosecutor sought to elicit A.M.’s
statements on the videotape that were inconsistent with her statements on cross-examination
pursuant to rule 801(e)(1)(B). See Tex. R. Evid. 801(e)(1)(B). Appellant objected that the
statements were inadmissible hearsay because Cantu was not an outcry witness who would be
permitted to relate the statements made to her. The court allowed Cantu to testify to prior consistent
statements made by A.M. Appellant requested that the court give a limiting instruction at the time
the testimony was elicited and again in the charge. The court agreed and then explained that because
appellant had not requested any instruction, she would give the instruction “straight from the book.”
Appellant then asked that the court give an instruction that the testimony was only to be used to rebut
a claim of motive and not for all purposes, and the court rejected the request.
Cantu then testified about certain statements made by A.M. during the videotaped
conversation. Although Cantu testified to several prior statements that were inconsistent with those
elicited from A.M. by defense counsel, appellant objects only to the court’s admission of a single
statement that he contends was inadmissible. He complains that Cantu testified that A.M. had told
10
her—consistent with A.M.’s direct testimony—that appellant had touched her “middle part”
underneath her clothing when they were both standing in appellant’s kitchen.
But the record is clear that the court allowed the State to elicit other
statements—inconsistent with those elicited on cross-examination and consistent with those elicited
on direct—to counter defense counsel’s effort to impeach A.M.’s testimony with selected portions
of the videotape. Thus, the court allowed the State to introduce Cantu’s testimony that A.M. told
her that appellant had touched her “middle part” underneath her clothing when they were both
standing in the kitchen of appellant’s apartment to counter a portion of the videotape reflecting that
A.M. was in her mother’s house when it happened.
In Sauceda v. State, the defense sought to introduce the testimony of a
CPS caseworker who interviewed the victim about the alleged incident. 129 S.W.3d 116, 118
(Tex. Crim. App. 2004). The State argued that if such testimony were allowed, the State would be
entitled to introduce, in its entirety, a videotape of the interview. Id. at 118-19. Although the
videotape contained numerous references to uncharged offenses, the trial court ruled that the State
could introduce the entire tape into evidence if the caseworker testified, under the rule of optional
completeness. Id. at 118-19 & n.3 (citing Tex. R. Evid. 107). Because he did not wish to introduce
the video itself, defense counsel did not call the caseworker to testify, and appellant was convicted.
After the court of appeals upheld the conviction, the court of criminal appeals reversed, holding that
the admission of testimony regarding selected portions of the videotape would not “open the door”
to the admission of the entire videotape. Id. at 121.
11
The court found, however, that the contents of the tape were subject to the rule of
optional completeness, and that the rule is implicated when a party attempts to have a portion of a
taped statement “given in evidence.” Id. at 122 (citing Tex. R. Evid. 107). The adverse party is then
entitled to introduce into evidence the remaining parts of the “act, declaration, conversation, writing
or recorded statement” or any related “act, declaration, conversation, writing or recorded statement”
necessary to a full understanding of the evidence. Washington v. State, 856 S.W.2d 184, 186
(Tex. Crim. App. 1993). In Washington, the court of criminal appeals held that the admission of the
tape was error because no mention of the tape was made during cross-examination and the defense
made no attempt to introduce the tape’s contents into evidence. Id. In Sauceda, the existence of the
videotape was mentioned frequently during cross-examination. 129 S.W.3d at 122.
For an omitted portion of a statement to be admitted, the plain language of rule 107
specifies that it must be “on the same subject” and must be “necessary to make it fully understood
or to explain the same.” Tex. R. Evid. 107. Thus, so long as the portions of the statement offered
by the State were on the same subject introduced by the defendant, and were offered for the purpose
of explaining the whole conversation on the same subject, the statements were properly admitted.
Sauceda, 129 S.W.3d at 123.
Addressing A.M.’s comment that she was in her mother’s house when the incident
happened, Cantu explained, “The way I understood it was that she was telling me how the event
started. She started off at her house and then ended up at his house.” Cantu continued:
[A]s she went on to tell me, it became clear that she was starting off the event by
being at her mother’s house, and then moving to the guy’s house, as she called him,
12
or the white guy, as she called him, and that that was actually where the touching
happened.
And so I think because of the hesitancies, the nervousness or trauma that she was
having at that time, that was what was making it a little confusing for her to talk
about it. But I think she was very clear by the end of the interview about what
happened and where it happened.
Because selective portions of the contents of the videotaped interview were relevant to the portions
of the interview offered by the defense, the challenged evidence was admissible on the ground of
optional completeness to avoid leaving a false impression as to A.M.’s statements. See Tex. R. Evid.
107. Thus, upon a showing by the State that the information on the videotape was offered in
response to the portions introduced by the defense and was necessary to make A.M.’s testimony fully
understood, the evidence was admissible. See Sauceda, 129 S.W.3d at 124. Moreover, because the
evidence was admissible under rule 107 for all purposes, no limiting instruction was necessary at the
time the evidence was introduced or in the charge. Appellant’s second, third, and fourth points of
error are overruled.
Inadvertent Playing of Inadmissible Portion of Videotaped Statement
In his fifth and sixth points, appellant contends that the trial court erroneously denied
his motions for mistrial when the judge inadvertently played a portion of a videotaped statement of
A.M.’s brother, O.M., that was inadmissible. He urges that the segment inadvertently played was not
relevant and included reference to an extraneous offense. The State responds that the excerpt was
not inadmissible and, further, that the trial court did not abuse its discretion in denying the motions.
13
We review a trial court’s denial of a motion for mistrial under an abuse of discretion
standard. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004); Trevino v. State, 991 S.W.2d
849, 851 (Tex. Crim. App. 1999). A mistrial is appropriate for “a narrow class of highly prejudicial
and incurable errors” and is used to terminate a trial proceeding when the error is so prejudicial that
“expenditure of further time and expense would be wasteful and futile.” Wood v. State, 18 S.W.3d
642, 648 (Tex. Crim. App. 2000). The determination of whether a given error necessitates a mistrial
must be made by examining the particular facts of the case. Ladd v. State, 3 S.W.3d 547, 567
(Tex. Crim. App. 1999).
Appellant objected to a portion of the videotaped interview of O.M. after it was
played for the jury. Although the record is unclear, an excerpt that referred to appellant touching
“O.M. on the bottom” was evidently played during O.M.’s testimony and at the conclusion of the
trial when the State sought to reopen the evidence to play the tape. In both instances, the trial court
denied appellant’s motion for a mistrial after instructing the jury to disregard the excerpt.
The indictment recited the instance of abuse against A.M. alone. In its notice of
intent to introduce evidence of extraneous conduct, the State listed nineteen extraneous acts it sought
to introduce at trial, including the following:
On or about March 24, 2004, in Travis County, Texas, the defendant committed the
offense of indecency with a child by sexual contact against [O.M.] by touching
[O.M.] on his “behind,” over the pants, with the defendant’s hand.
On or about March 24, 2004, in Travis County, Texas, the defendant committed the
offense of indecency with a child by sexual contact against [O.M.] by touching
[O.M.] on his penis.
14
When O.M. testified, defense counsel objected to the introduction of any evidence of abuse of O.M.
The prosecutor agreed not to elicit the testimony at that time. The court agreed that “[i]t’s not
coming out right now” and directed the State “not to talk about that.”
Prior to O.M.’s testimony two days later, at the request of the parties, the court played
three segments of O.M.’s videotaped interview and advised the jury that one—the first—was
presented by the defense and the next two by the State. The record shows that, as the tape evidently
began playing the second segment as offered by the State, defense counsel objected to a segment
offered by the State as a prior consistent statement and asked that the videotape be stopped. The
following colloquy then occurred at the bench:
[Defense Counsel]: I object to the showing of that last portion. That had
absolutely no relevance to this case, and it was an extraneous
offense. It talked about [O.M.]’s bottom being touched.
[Court]: Did you touch your sister?
[Defense Counsel]: What I heard was that he touched my bottom. Where were
you when he touched your bottom?
[Court]: On the second one?
[Defense Counsel]: Right, the second one you just showed.
[Court]: Okay.
[Prosecutor]: The portions I requested to be played—
[Court]: Your objection is noted. It’s overruled at this point. If that
was played, it was inadvertent on the part of the Court. I
was—just so the record will reflect, I was the one that was in
charge of the videotape, and I’m trying to get the numbers
right. It’s very difficult because I’m working two different
15
remotes. Your objection is noted. If that—it’s sustained if
that came out. You can ask for a mistrial.
[Defense Counsel]: I’m asking for a mistrial.
[Court]: It will be denied at this point.
[Defense Counsel]: And I’d ask that the jury be instructed to disregard that
portion.
[Court]: I don’t know if they heard that.
[Defense Counsel]: Of course they heard it.
[Court]: It might bring more attention to it. You want me to say, the
only evidence you need to consider is the first snippet at this
point? Okay.
The court then gave a limiting instruction that “the only evidence that you are to consider at this
point is the first portion of the videotape that I played back to you that was presented by the defense,
and that’s at this point.” Defense counsel then offered that portion into evidence and inquired of
O.M. about his statement on the videotape that his sister was wearing a dress on the day in question.
As the trial drew to a close, the State moved to reopen the evidence to “show prior
consistent statements of [O.M.]” After the court overruled defense counsel’s objection to the State’s
reopening, two tape segments were played. After the excerpts were played, defense counsel objected
that the excerpt about “contact with [O.M.]’s bottom” was again inadvertently played. He asked the
court to advise the jury to disregard that portion and requested a mistrial.3 The court denied the
3
The record shows that the two motions for mistrial relate to the same segment of the tape,
which makes reference, in some manner not fully reflected in the record, to appellant touching O.M.
on the “bottom.”
16
motion for mistrial, but gave an instruction: “With regard to the first playback, the Court instructs
you that you are only to consider the portion that will be admitted into evidence. If you need to see
it again, it’s the portion where [O.M.] is asked about his sister on the middle part and where it was.”
The State then offered the exhibits into evidence, defense counsel did not further object, and the
exhibits were admitted.
After each playing of the excerpt, the trial court granted appellant’s request for a
curative instruction. Appellant did not object to the curative instruction given by the trial court. It
is not clear from the record whether the parties conferred sufficiently with the court to avoid the
playing of the excerpt that even appellant characterizes as inadvertent and an accident. Although
appellant contends that the touching constituted an extraneous offense and was therefore
inadmissible, the State asserted that the evidence had “become relevant” with O.M.’s testimony. But
the record is not clear precisely what questions and answers are the subject of the objection. And
the judge had some difficulty in deciphering what was said on the recording. Although the judge
suggested that the jury may not have heard “that,” defense counsel responded that “of course they
heard it.” The precise language objected to never appears in the record before us on appeal or in
appellant’s brief except to the extent we have referred to it here.
Assuming O.M.’s complained-of testimony about the contact was a reference to an
extraneous offense, the trial court’s instruction to disregard was sufficient to cure any harm or
prejudice from this event. See Marshall v. State, No. AP-75,048, 2006 Tex. Crim. App. LEXIS
2444, at *24 (Tex. Crim. App. Dec. 20, 2006) (citing Young v. State, 137 S.W.2d 65, 69-70
(Tex. Crim. App. 2004) (mistrial not required where prejudice is curable by instruction to disregard);
17
Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (instruction to disregard usually cures
prejudice from reference to extraneous offense)). Upon reviewing the record, we find no indication
that the excerpt inflamed the jury with information regarding other allegations against appellant.
Therefore, we conclude that the trial court’s instruction to disregard cured any possible prejudicial
effect of the witness’s testimony. We overrule appellant’s fifth and sixth points of error.
Witness’s Opinion Testimony
In his seventh point of error, appellant contends that the trial court erred in allowing
the witness Cantu to directly express an opinion on the truthfulness of A.M.’s allegations and that
expert witnesses are barred from presenting such testimony.
When A.M. gave conflicting testimony in her interview with Cantu, Cantu testified
that she thought A.M. was nervous and traumatized. After Cantu testified that at the beginning of
the interview A.M. said the incident happened at “my mom’s house” and the “white guy” was
“outside,” the following exchange occurred:
[Prosecutor]: That doesn’t seem to make sense, does it?
[Defense Counsel]: Objection. That snippet of the videotape that the jury is going
to be offered speaks for itself. I’m going to object to any
reinterpretation of that.
[Court]: Overruled.
[Prosecutor]: So when she’s saying to you in the very beginning that the
touching took place at her house, but she was inside and he
was outside her house, how did you—based on your
conversation with [A.M.] and your training and experience in
this field, how did you interpret that give and take?
18
After the court overruled defense counsel’s objection that Cantu was “telling the jury how to
interpret the evidence,” Cantu testified: “The way I understood it was that she was telling me how
the event started. She started off at her house and then ended up at his house.” Without objection,
Cantu then testified that A.M. exhibited confusion about the sequence of events:
I think that in the beginning, as we talked about, she seemed a little confused. And
I was confused about where the actual touching event happened. But then as she
went on to tell me, it became clear that she was starting off the event by being at her
mother’s house, and then moving to the guy’s house, as she called him, or the white
guy, as she called him, and that that was actually where the touching happened. And
so I think because of the hesitancies, the nervousness or trauma that she was having
at that time, that was what was making it a little confusing for her to talk about it.
But I think she was very clear by the end of the interview about what happened and
where it happened.
On cross-examination, the following testimony occurred as defense counsel asked Cantu about her
role of “gathering information” in the investigatory stage of the case:
Q [Defense Counsel]: Well, one possibility is that the child was making a false
accusation, isn’t it?
A [Cantu]: That’s always possible on any case.
Q [Defense Counsel]: So when you’re saying that you’re trying to be impartial,
how were you impartial to Mr. Hoover?
A [Cantu]: My job, again, is to collect information from the child. I
can’t suggest information to the child or give them any
information. I just ask them questions so they tell me what
they know.
Q [Defense Counsel]: Well, did you look for any evidence that the child was
giving you a false allegation?
A [Cantu]: Again, my job is not to collect evidence on the entire case.
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Q [Defense Counsel]: I’m asking: Did you collect any evidence from the child that
would suggest that she was making a false allegation?
A [Cantu]: No, I did not.
Cantu acknowledged that she would not know if A.M. fabricated her testimony:
Q [Defense Counsel]: And so if [A.M.] made this up, you wouldn’t know the
difference?
A [Cantu]: What I’m doing is collecting information and basing that
information—you know, what I’ve done is reflected what
she’s told me and her emotions.
Q [Defense Counsel]: If [A.M.] made this up, you wouldn’t know the difference,
would you?
A [Cantu]: No. I wouldn’t know from—because I didn’t do the
complete investigation.
Q [Defense Counsel]: If [A.M.] made this up, you wouldn’t know the difference?
A [Cantu]: No, I wouldn’t.
Cantu then testified on redirect:
Q [Prosecutor]: Ma’am, based on your training and experience and based on
your interview of [A.M.], do you possess an opinion on
whether [A.M.] was telling you the truth or not?
A [Cantu]: Based on what I saw, she seemed to be very traumatized by
an event. And she described an event that could have given
her that trauma for her.
Q [Prosecutor]: So the trauma that you observed in her was consistent with
what she described happening to her at the hands of the
defendant?
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A [Cantu]: Yes.
Appellant urges that this last excerpt constituted impermissible testimony concerning
A.M.’s credibility and the truth of her allegations. Although Cantu was asked her opinion on
whether A.M. was telling the truth, she responded with her observations of A.M.’s emotional state.
This evidence is admissible to meet or explain her testimony given in response to defense
questioning. Any error in the admission of the complained-of evidence, however, was harmless
because the portions of the record set out above show that appellant brought out essentially the same
evidence before it was elicited by the State or that essentially the same evidence was brought out
without objection. See Marshall, 2006 Tex. Crim. App. LEXIS 2444, at *30 (citing Leday v. State,
983 S.W.2d 713, 716-18 (Tex. Crim. App. 1998) (improper admission of evidence is harmless when
other such evidence is admitted without objection)). We overrule appellant’s seventh point of error.
CONCLUSION
Having overruled appellant’s points of error, we affirm the judgment of conviction.
__________________________________________
Jan P. Patterson, Justice
Before Chief Justice Law, Justices Patterson and Pemberton
Affirmed
Filed: February 27, 2007
Do Not Publish
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