TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-11-00416-CR
Felix Sandoval, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 428TH JUDICIAL DISTRICT
NO. CR-11-0225, THE HONORABLE WILLIAM HENRY, JUDGE PRESIDING
OPINION
A jury convicted appellant Felix Sandoval of the offense of sexual assault of a child,
see Tex. Penal Code § 22.011(a)(2)(A), and assessed his punishment, enhanced by a prior felony
conviction, at confinement for 80 years in the Institutional Division of the Texas Department of
Criminal Justice. See id. §§ 22.011(f) (categorizing offense as second degree felony), 12.42(b)
(providing that at trial of second degree felony offense, defendant shall be punished for first degree
felony upon proof of previous felony conviction), 12.32 (punishment range for first degree felony
is imprisonment for life or any term not more than 99 years or less than 5 years). In nine points of
error on appeal, appellant complains about the removal of a juror during deliberations, the admission
of hearsay evidence, the admission of improper opinion testimony, and the admission of
character-conformity evidence. For the following reasons, we reverse appellant’s conviction and
remand the cause to the trial court for a new trial.
BACKGROUND
The record reflects that on July 14, 2010, the victim, C.E., turned 15 years old.1
Appellant was married to C.E.’s aunt, and occasionally C.E. spent the night in their home to visit
their daughter, C.E.’s younger cousin. In November 2010, C.E. disclosed to another cousin, B.E.,
that on one overnight visit earlier that year appellant forced her to have sexual intercourse with him.
The cousin got her father, C.E.’s uncle, and had C.E. repeat the information to him. He, in turn, got
C.E.’s mother and had C.E. tell her mother. C.E.’s mother, Rosie, reported the incident to police the
following day.2
Daniel Preston, a patrol officer with the City of Kyle Police Department, responded
to a dispatch call concerning C.E.’s complaint of sexual assault. He met with C.E. and her mother
at the police station, where he interviewed them and took written statements from both of them.
During the officer’s testimony at trial, the written statements of both C.E. and Rosie were admitted
for the limited purpose of showing what information the officer acted on. In order to “minimize any
perceived prejudice to the defendant,” the trial court ordered that the statements not be published to
the jury until C.E. and her mother testified.
Officer Preston testified that C.E. and her mother both told him that appellant had
sexually assaulted C.E. the preceding summer when C.E. spent the night at his house to visit her
younger cousin. In his testimony, the officer repeated the details of C.E.’s account of the alleged
1
In order to protect the identity of the minor children involved in this case, we use only the
initials of the victim and other children and only the first names of adult family members.
2
There is some confusion in the record about the spelling of Rosie’s full first name.
However, the record reflects that she goes by “Rosie,” which is how we will refer to her in
this opinion.
2
sexual assault. According to the information he received, C.E. spent the night at her aunt’s house
one night between mid-July and mid-August 2010. The next morning, her aunt and cousin left to
go to the store, but C.E. remained behind to sleep some more. After her cousin left, C.E. locked the
bedroom door and returned to bed. She then heard appellant repeatedly knocking on the door
seeking entrance. C.E. refused to open the door, telling him to go away. She got up out of bed and
went to sit on a couch by the window to await her aunt’s return. However, appellant somehow
unlocked the door and entered the bedroom. According to C.E.’s report to the officer, appellant then
came toward her and began hugging her and kissing her on the mouth. C.E. told the officer that she
moved her head from side to side to avoid the kisses and told him to stop. She said that appellant
then threw her on to the bed and when she attempted to get up he pushed her back down on the bed.
They struggled over her sweat pants—when appellant repeatedly attempted to remove them she kept
pulling them back up—until he managed to remove them completely after he grabbed her hands.
She reported that when he held her hands, it caused her pain. C.E. told Officer Preston that appellant
inserted his penis into her vagina as she continued to struggle and fight. She said that appellant had
intercourse with her for approximately five minutes and then stopped. He told her not to tell anyone
about what had happened and then took his clothes and went into the bathroom. When her aunt and
cousin returned, C.E. pretended nothing had happened. She did not say anything until November 14
of that year, when she revealed the assault to her 15-year-old cousin. In his testimony, the officer
confirmed that what C.E. told him was “in line” with what her mother told him had happened.
The officer also testified that during his interview of C.E., she gave a description of
a tattoo on appellant’s upper arm. During questioning on redirect examination, the State showed
Officer Preston a photograph of a tattoo on appellant’s arm taken during his jail book-in, and the
3
officer opined that it matched the description C.E. gave him. In addition, Officer Preston described
the clothing that C.E. reported appellant had been wearing at the time of the assault—a white t-shirt
and camouflage shorts. The officer also said that C.E. indicated that she did not report the assault
sooner because she was scared. He further testified that C.E.’s written statement comported with
what she had told him in the interview and, further, that he “didn’t find any glaring discrepencies or
inconsistencies . . . that would raise red flags.” After taking the report, he forwarded the case to the
Criminal Investigation Division.
Pedro Carrasco, a detective with the Kyle Police Department, was assigned to
investigate the case. He set up a forensic interview of C.E. at the local child advocacy center. As
part of his investigation, he reviewed the video of the interview.3 He opined in his testimony at trial
that C.E.’s forensic interview was consistent with both the written and oral statements C.E. had
provided Officer Preston. He also explained that in her forensic interview C.E. described a tattoo
on appellant’s left arm. After being shown a photograph of appellant’s tattoo by the prosecutor, he
opined that it matched the description C.E. gave to the interviewer. Detective Carrasco also testified
that he had not observed anything in C.E.’s forensic interview that indicated to him that she had
fabricated the allegations.
The detective also testified that, as part of his investigation, he made contact with
appellant, who agreed to come in to the police station for a voluntary interview.4 During the
3
The record reflects that law enforcement officers are able to watch the forensic interviews
in a separate room at the advocacy center while they are being conducted. However, Detective
Carrasco was not present to observe C.E.’s interview live.
4
According to his testimony, the detective first made contact with appellant at his house.
Initially, appellant hid inside the house while his wife answered the door and told the detective he
was not at home. Feeling that appellant was inside, Detective Carrasco explained that appellant was
4
interview, appellant recalled the night that C.E. spent the night at his house that summer, and he
remembered that his wife had left the house for 10 to 15 minutes and then returned. Throughout the
interview, appellant repeatedly denied committing the offense and expressed that “[he was] not a
molester.” He indicated that he did not know C.E.’s motives for falsely accusing him, but offered
several possible reasons for the accusation, including the family’s dislike of him. At the end of the
interview, appellant offered to give a DNA sample and, after the detective’s request, indicated that
he would consider taking a polygraph test. However, the detective had no further communications
with appellant after the interview. The video recording of the interview was admitted into evidence,
in its entirety, and played for the jury during the detective’s testimony.5
not in trouble and that he just needed to talk to him. Appellant’s wife then went inside the residence,
and shortly thereafter appellant came to the door. The detective testified that he found appellant’s
reluctance to come to the door and his wife’s lying for him “significant.”
5
The video of the interview began with a discussion about appellant’s prior incarceration
for aggravated assault and his explanation about the circumstances of that offense. During the
interview, the detective mentioned “another incident . . . about [J.A.] [C.E.’s older sister]” that
implied inappropriate conduct, to which appellant made no response. The interview ended with a
discussion about taking a polygraph exam, during which appellant mentioned hiring a lawyer.
Defense counsel objected to the admission of these portions of the video and asked that the video
be redacted. The State opposed redaction.
The State first offered the video when defense counsel began to cross-examine the detective
about the interview. The prosecutor objected to questions about specifics of the interview and
offered the video in its entirety “under the Doctrine of Optional Completeness.” The objection was
overruled. A few questions later, the State again objected and again offered the video. The objection
was again overruled, but defense counsel pursued the State’s willingness to admit the video.
However, the prosecutor explained that her agreement to the admission of the video was conditioned
on its admission in its entirety, unredacted, stating, “The whole kit and caboodle. If it comes in, it
comes in as is.” When defense counsel objected to that, she expressed that “[h]e doesn’t get to pick
and choose.” At that time, the trial court took the arguments under advisement and made no ruling
concerning the redaction of the objected-to content. Later, when defense counsel continued to
question the detective about the specifics of the interview, the State again objected and again offered
the video under the doctrine of optional completeness. The objection was again overruled.
Subsequently, after the State’s redirect examination of the detective, a discussion about the
admissibility of extraneous offenses occurred outside the presence of the jury. The discussion
5
Also during his testimony, Detective Carrasco confirmed that he had received
information about an admission that appellant made to his wife that “seemed to corroborate that
[appellant] had had intercourse with C.E.” His subsequent testimony revealed that this corroborating
information came from appellant’s in-laws. Allegedly, appellant admitted having had sex with his
niece to his wife, who then told her mother, who then told C.E.’s mother, Rosie, who then told
Detective Carrasco.6 In concluding his direct testimony, the detective detailed the considerations that
led to his opinion that appellant had committed the sexual assault.
After the law enforcement officials testified, C.E.’s family members testified about
her disclosure of the sexual assault. C.E. disclosed the sexual assault first to her 15-year-old cousin,
B.E., at a family gathering. B.E. then told her father, Jesse, and had C.E. tell him what had
happened. Jesse then notified his sister, C.E.’s mother, and was with them when C.E. told her
mother about the assault. During his testimony at trial, Jesse described C.E.’s demeanor when she
told him about the assault and when she recounted the details of the sexual assault to her mother.
In her testimony, B.E. recounted the details of the sexual assault as C.E. had described it to her. She
centered on the admission of appellant’s alleged extraneous conduct with C.E.’s older sister when
she was younger and did not clearly refer to the video or the issue of redaction. However, after the
court made its ruling as to what extraneous-offense evidence would be admitted, defense counsel
indicated that because the trial court had “ruled against [them],” the defense wanted the video of the
interview admitted. He agreed to the admission of the video in its entirety “subject to [his]
objections.” When the State moved to publish the video to the jury, further discussions at the bench
again established that defense counsel wanted the video shown subject to the previous objections,
which the court clarified for the State as being “404(b) objections.”
6
The record reflects that Detective Carrasco called appellant’s wife to ask about the alleged
admission. In the phone call, which was recorded by the detective, appellant’s wife said that she told
her mom that her niece locked the door because that is what appellant told her. However, she
repeatedly told the detective that her husband denied the allegations and told her over and over that
“he didn’t do it.”
6
also described C.E.’s demeanor when she told about the assault, indicating that C.E. was upset. The
State offered C.E.’s hearsay statements to her cousin as an “excited utterance,” and the trial court
admitted them as such.
C.E.’s mother, Rosie, also testified at trial. While she did not provide the details of
the sexual assault that her daughter had shared with her, she testified that C.E. identified appellant
as the one who sexually assaulted her. She described C.E. as “emotional” when she told her about
the assault. Rosie’s written statement to Officer Preston, detailing her daughter’s account of the
sexual assault to her, was admitted “for all purposes” during her testimony. Much of Rosie’s
testimony rebutted the assertions appellant made in his interview with the detective. For example,
she denied that C.E.’s biological father might have sexually molested her daughter and denied
knowing any reason why her daughter might have fabricated these allegations against appellant.
Rosie also testified that she had learned earlier from her oldest daughter, J.A., that appellant was
sexually interested in children.
Rosie’s daughter, J.A., was 20 years old at the time of trial. She testified that
appellant had a reputation among the children in the family for being a “pervert” and that she had
warned the younger girls in the family, including C.E., to avoid him. She expressed her opinion that
appellant was a sexual predator because of something he tried with her—several instances that had
made her “feel uncomfortable.” She alluded to three instances of conduct, recounting the details of
the last incident, which occurred when she was nine or ten years old. She described an occasion in
which she and appellant were in his bedroom, she was standing between his legs as he sat on the bed,
and he grabbed her by her butt and pulled her toward him with a “creepy” smile on his face.
7
Melissa Rodriguez, the program director at the local child advocacy center, conducted
the forensic interview of C.E. She testified about the process of forensically interviewing children
and the expected behaviors of children when being interviewed. She also discussed factors that
forensic interviewers consider when determining whether abuse allegations may be fabricated. She
did not recount the details that C.E. shared with her about the sexual assault. She did, however,
testify that nothing in the interview contradicted the report of sexual assault that she had received
from law enforcement prior to the interview. She also indicated that she had prior experience with
children who had fabricated allegations of sexual abuse and testified that she did not have any
concerns that C.E. had fabricated these allegations, reported no such concerns to law enforcement,
and saw “no red flags at all.”
Finally, C.E. testified about the sexual assault appellant perpetrated against her that
summer. She testified that although she was suspicious of her uncle, having been warned about him
by her sister, J.A., she nonetheless had overnight visits at her aunt’s house on several occasions to
visit her younger cousin. She testified that during that summer, in late July or early August, she
spent the night in her cousin’s bedroom.7 She said the next morning she stayed at the house while
her cousin and aunt went to the store because she wanted to sleep some more. After they left, she
locked the bedroom door and got back into bed. Immediately, she heard her uncle knocking on the
door telling her to open the door. She refused and told him to go away. She then heard something
at the door, got scared, and went to sit on the couch by the window to check for her aunt. C.E.
testified that as she sat on the couch, she heard her uncle picking the lock. She said she did not know
how, but her uncle gained entry into the room. He moved toward her and sat next to her on the
7
C.E. recalled that the incident had occurred after her birthday but before school started.
8
couch. When he sat down, she stood up. He then stood up as well, grabbed her, and starting kissing
her on the mouth. She said she tried to avoid his kisses, moving her head and trying to back away,
but he was too strong. She testified that they struggled, and eventually he pushed her onto the bed.
She said appellant then got on top of her and starting kissing her again. He removed her pants, and,
after some effort, put his penis into her vagina. She estimated the incident lasted for less than five
minutes, after which appellant stopped, got up, and left, telling her to say nothing. C.E. then got
dressed and returned to the couch to wait for her aunt to come home. She testified that she did not
tell anyone in her family because she did not know what they would think. She was close to her
cousin, B.E., however, and eventually told her about the incident because keeping it a secret “was
killing [her] inside.” During C.E.’s testimony, the State reoffered her written statement, which the
court admitted without limitation. In providing the details of the sexual assault, C.E.’s testimony
essentially repeated the accounts provided in Officer Preston’s testimony, her cousin’s testimony,
her mother’s written statement, and her own written statement.
The State rested after C.E.’s testimony. Appellant rested without calling witnesses.
After the jury began deliberating, the trial court discharged a juror and replaced him with the
alternate, after which the jury convicted appellant of the offense as charged. Appellant elected for
the jury to assess punishment. He pled true to an enhancement allegation of a prior felony
aggravated-assault conviction. The State did not call any witnesses during the punishment phase but
offered into evidence a penitentiary packet reflecting the prior felony aggravated-assault conviction
and a judgment reflecting a prior misdemeanor assault conviction. The jury assessed appellant’s
punishment at 80 years’ imprisonment. This appeal followed.
9
DISCUSSION
Appellant raises nine points of error on appeal. The first point of error complains
about the removal of a juror during deliberations on guilt. The remainder of appellant’s points of
error raise evidentiary complaints about the trial court’s admission of inadmissible hearsay
statements, improper opinion testimony, and inadmissible character-conformity evidence.
I.
Removal of Juror
In his first point of error, appellant contends the trial court erred by excusing a juror,
over his objection, after deliberations on guilt-innocence had begun and replacing him with the
alternate juror.
Following voir dire on Monday, the jury and one alternate juror were sworn. Trial
began the following morning. The guilt-innocence phase concluded three days later, and the jury
was sent out to deliberate Thursday afternoon. At that time, the alternate juror was conditionally
released with the court’s admonition that he was still bound by the instructions of the court but was
free to leave the courthouse, subject to recall if his services became necessary. Sometime after
deliberations started—the record does not make clear when—the court apparently received
information that one of the jurors, Mr. Brooks, had communicated with the court’s bailiff about the
case. The judge brought Juror Brooks into the courtroom to inquire about the nature of any
communications he might have had. During the inquiry, Brooks confirmed that he had
communicated with the bailiff, someone he knew from church, and had expressed to her his feelings
about sitting as a juror in the case and rendering a verdict.
10
In response to the court’s questions, Brooks indicated that “[he wasn’t] sure” if he
could follow the instructions of the court because he “would much rather be minding [his] own
business at home.” When the judge asked if he could sit in judgment of another person, he
answered, “No. At this moment, no.” When the court sought clarification, Brooks expressed
uncertainty, stating, “I don’t feel that I know enough to really make a sound judgment in this case.”
When his answers suggested that his uncertainty resulted from “going through a lot in [his own] life”
at the time, the court questioned him about mental-health issues. Brooks denied any psychological
problems, saying, “Well, I don’t consider them psychological problems, I think some of them might
be very sound, rational arguments.” When the judge directly asked whether “situations going on in
[his] life [were] creating some stress” for him, Brooks responded, “Not really.” Ultimately, Juror
Brooks explained,
. . . The reason why I don’t want to issue a verdict, particularly a not guilty
[sic] verdict, is because I feel that based on the evidence that’s been presented to us,
the jury, I don’t feel that there’s enough to make me know that the guy did it. I mean,
whether he did it or not, I could be about 50/50 about that, you know.
....
So if it’s an issue of everything based on what she says, I don’t feel that that’s
enough to make me feel comfortable issuing a guilty verdict just because everybody
else wants to.
The court confirmed with Brooks that this concern about rendering a guilty verdict was what he
shared with the bailiff in his conversation with her.8
8
The record reflects that throughout the questioning, Juror Brooks was uncomfortable at
having to explain his feelings in open court. In his answers to the court, he expressed that he “sure
wish[ed] [he] could talk to somebody in private about it,” did not understand why he “would have
to say it in front of [others],” and “wish[ed] [he] could tell [the judge] in private” because he “[knew]
11
After Juror Brooks left the courtroom, the State asked the judge to remove him from
the jury and replace him with the alternate juror pursuant to article 33.011 of the Texas Code of
Criminal Procedure. The prosecutor took the position that “Mr. Brooks has some, at the very least,
probably significant external problems going on that may cause him to be under some emotional
duress that render him unable to continue deliberating.” She further argued that he violated the rules
of the court by discussing “this case and his feelings and his comments on deliberation with a person
not of his jury.” Defense counsel responded that “it’s not that [Brooks] can’t follow the orders of
the Court, it’s that he doesn’t agree with the rest of the jury, and he can’t go along with them.” He
pointed out that the jury had not been deliberating long and that Brooks had indicated that he could
not “agree at this time.” He maintained that Juror Brooks was not disabled under the statute and that
replacing him was not necessary or authorized.
Before making a ruling, the trial judge questioned his bailiff. She concurred “with
what Mr. Brooks said with regard to his conversation with [her]” but indicated that he was more
detailed about his feelings when answering the judge’s questions. She confirmed that she knew
Brooks from church as well as through other people in the community. The trial court asked her if
she “ha[d] any understanding, one way or the other, of whether or not he would be of sound mind.”
In response, the bailiff opined that “he is painfully shy” and that she thought they would have a “hard
time” getting him back in the jury room to continue deliberations because he was “strong-willed
enough that he would not go in there.”
people in this town.” He indicated that part of the reason he shared his feelings about serving as a
juror with the bailiff was because he was alone with her in the hallway.
12
At that point, the court found that Juror Brooks was “disqualified because, among
other things, his communication to someone not of his jury about the details of the case.” He further
found that the communication was “not initiated or encouraged” by the bailiff. He granted the
State’s request to have the alternate juror replace Juror Brooks. Defense counsel renewed his
objection by moving for a mistrial, which the court denied. The judge then determined, for record
purposes, the length of the bailiff’s conversation with Juror Brooks. The bailiff indicated it was
“[l]ess than a minute,” explaining, “As soon as he began discussing anything that related to evidence,
I put my hand on his shoulder and I said, ‘I need you to stop right there.’” Defense counsel further
objected to the court’s finding that Juror Brooks was disqualified.
Standard of Review
The trial court has discretion to determine whether a juror has become disabled and
to seat an alternate juror. Scales v. State, 380 S.W.3d 780, 783 (Tex. Crim. App. 2012); see Routier
v. State, 112 S.W.3d 554, 588 (Tex. Crim. App. 2003). The trial judge is the sole fact-finder and
judge of the credibility of the testifying juror, but the court’s decision to replace a juror with an
alternate is subject to review for an abuse of discretion. Scales, 380 S.W.3d at 784. In order to
support its decision, the trial court must make a finding, sufficiently supported by the record, that
the juror was disqualified or unable to perform the duties of a juror. Id.; see Tex. Code Crim. Proc.
art. 33.011(b). It is not the role of an appellate court to substitute its own judgment for that of the
trial court, but rather to assess whether, after viewing the evidence in the light most favorable to the
trial court’s ruling, the ruling was arbitrary or unreasonable. Scales, 380 S.W.3d at 784. The ruling
must be upheld if it is within the “zone of reasonable disagreement.” Id. Absent such an abuse of
discretion, no reversible error will be found. Id.; see Routier, 112 S.W.3d at 588.
13
Juror Communication
The trial court based its finding that Juror Brooks was disqualified, and its subsequent
decision to remove him, primarily on Brooks’s communication with the bailiff.
A juror must make decisions at the guilt and punishment phases using information
obtained in the courtroom: the law, the evidence, and the trial court’s mandates. Granados v. State,
85 S.W.3d 217, 235 (Tex. Crim. App. 2002); see also McQuarrie v. State, 380 S.W.3d 145, 152
(Tex. Crim. App. 2012). Accordingly, article 36.22 of the Texas Code of Criminal Procedure
prohibits conversing with the jury: “No person shall be permitted to converse with a juror about the
case on trial except in the presence and by the permission of the court.” Tex. Code Crim. Proc.
art. 36.22; see also Tex. R. App. P. 21.3(f) (providing that defendant must be granted new trial when
juror has talked with anyone about case). The main purpose of this statutory prohibition
“is to prevent an outsider from saying anything that might influence a juror.” Ocon v. State,
284 S.W.3d 880, 887 (Tex. Crim. App. 2009) (quoting Chambliss v. State, 647 S.W.2d 257, 266
(Tex. Crim. App. 1983) (emphasis in original)). The paramount issue is whether appellant received
a fair and impartial trial; therefore, the analysis must focus on whether the juror was biased as a
result of the improper conversation, not whether the juror biased an outsider. Id. If a violation is
shown, the effectiveness of possible remedies will be determined in part by whether the conversation
influenced the juror. Id. at 884.
A violation of article 36.22 triggers a rebuttable presumption of injury to the accused.
Id.; Klapesky v. State, 256 S.W.3d 442, 452 (Tex. App.—Austin 2008, pet. ref’d). To invoke this
presumption, a complaining party must show a communication between a juror and an unauthorized
14
person that involved matters concerning the case on trial.9 See Chambliss, 647 S.W.2d at 265–66;
Klapesky, 256 S.W.3d at 452. If it is shown that the case was not discussed or that
nothing prejudicial to the accused was said, then appellant has not been injured. Green v. State,
840 S.W.2d 394, 406 (Tex. Crim. App. 1992), disavowed on other grounds by Trevino v. State,
991 S.W.2d 849, 853 (Tex. Crim. App. 1999). Such a showing may rebut the presumption of harm.
Id. Reviewing courts should consider the evidence rebutting the presumption of harm regardless of
whether it was presented by the State or by the accused. Bokemeyer v. State, 355 S.W.3d 199, 203
(Tex. App.—Houston [1st Dist.] 2011, no pet.); Alexander v. State, 919 S.W.2d 756, 767 (Tex.
App.—Texarkana 1996, no pet.).
We hold that the record in this case does not establish an article 36.22 violation.
“[T]he language of Article 36.22 establishes two speakers, with attention directed toward the
outsider’s . . . speaking.” Ocon, 284 S.W.3d at 885 n.4; see Benefield v. State, 389 S.W.3d 564, 570
(Tex. App.—Houston [14th Dist.] 2012, pet. ref’d); see also Patterson v. State, 293 S.W. 570, 571
(Tex. Crim. App. 1927) (op. on reh’g) (no violation of predecessor statute when juror made comment
to third party and third party “made no reply to what the juror said”; court held that this was “not
‘conversing with a juror,’” and thus there was no presumption of injury). Here, nothing in the record
suggests that the bailiff communicated anything about the case to Juror Brooks outside the presence
of, or without permission from, the court. The uncontroverted evidence established that the bailiff
9
We note that generally there is no presumption of injury when the bailiff associates with
the jury. See Alexander v. State, 919 S.W.2d 756, 766 (Tex. App.—Texarkana 1996, no pet.). In
fact, Texas procedural law requires the county sheriff to provide a bailiff to the court to attend to the
wants and needs of the jurors. See Tex. Code Crim. Proc. art. 36.24 (entitled “Officer Shall Attend
Jury”). In this case, the trial judge instructed the jurors that the bailiffs of the court would be the
“point of contact.” Thus, the issue here is more correctly described as an unauthorized
communication rather than a communication with an unauthorized person.
15
did not discuss the case with Juror Brooks, nor did she say anything even arguably prejudicial to
appellant during her conversation with the juror. Thus, any presumption of injury was rebutted by
this evidence. Further, there is no indication that Juror Brooks emerged from his conversation with
the bailiff with any new information about the case that created a bias for or against either side. See
Ocon, 284 S.W.3d at 887. Rather, Juror Brooks merely disclosed his feelings about serving as a
juror due to his concerns about the evidence, i.e., he expressed his doubts. This disclosure, while
perhaps improper, was not a conversation contemplated by article 36.22. Because the conversation
did not constitute an unauthorized communication with a juror, it was not grounds for the
disqualification of Juror Brooks. Further, we find the remedy the trial court utilized to address Juror
Brooks’s improper conduct—his removal from the jury—too extreme given the fact that the record
does not reflect any bias or prejudice to either party as a result of the conversation.
Inability to Perform Duties
The trial court determined that Juror Brooks was disqualified because of his
unauthorized communication with the bailiff “among other things.” The court did not explain what
those “other” disqualifying things were. However, based on the State’s request and argument urging
the replacement of Juror Brooks with the alternate juror, we presume that one of those “other things”
was the court’s conclusion that Juror Brooks was unable or disqualified to perform his duties under
article 33.011(b).
Article 33.011(b) of the Texas Code of Criminal Procedure states that, before a jury
renders a verdict regarding a defendant’s guilt or innocence, or assesses a punishment when
applicable, alternate jurors “shall replace jurors who . . . become or are found to be unable or
disqualified to perform their duties[.]” Tex. Code Crim. Proc. art. 33.011(b). Thus, when a regular
16
juror becomes unable or disqualified to perform his duties, Texas law requires that the juror be
replaced with the alternate juror. Id.; Scales, 380 S.W.3d at 783; Romero v. State, 396 S.W.3d 136,
148 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). The statute does not define “unable to
perform,” but appellate courts have concluded that “unable” as used in article 33.011 is
indistinguishable from “disabled” as used in article 36.29. See Scales, 380 S.W.3d at 783; Sneed
v. State, 209 S.W.3d 782, 786–87 (Tex. App.—Texarkana 2006, pet. ref’d). The court of criminal
appeals has interpreted “disability” under article 36.29 to require that a disabled juror suffer from
“a physical illness, mental condition, or emotional state that would hinder or inhibit the juror from
performing his or her duties as a juror,” or that the juror was suffering from a condition that inhibited
him from “fully and fairly performing the functions of a juror.” Scales, 380 S.W.3d at 783 (internal
quotation marks omitted); see Routier, 112 S.W.3d at 588. To support its decision that a juror is
disabled, the trial court must make a finding, sufficiently supported by the record, that the juror was
disqualified or unable to perform the duties of a juror. Scales, 380 S.W.3d at 783. The trial court
may not dismiss a juror for reasons related to that juror’s evaluation of the sufficiency of the
evidence. Id. at 783–84 (citing United States v. Edwards, 303 F.3d 606, 633 (5th Cir. 2002)).
The record in this case does not support a finding that Brooks was unable to perform
his duties as a juror, only that he was disinclined to do so. Nothing in the record indicates that his
feelings hindered him from “fully and fairly performing [his] functions as a juror,” he simply had
an aversion to doing so because he had doubts about the sufficiency of the evidence. Although his
testimony demonstrates that he was troubled by his doubts and frustrated at potentially being the
hold-out juror, at no time did Brooks indicate that he would not, or could not, deliberate further.
Nothing demonstrates that he was emotionally distraught or unable to deliberate, as the State
17
suggests. He only expressed that he was disinclined to return a guilty verdict because he found the
evidence lacking. Overall, his testimony simply expressed his doubt concerning appellant’s guilt.
His aversion to performing his duties as a juror stemmed from his discomfort of having a
“reasonable doubt” when others on the jury, apparently, did not. However, the trial court was not
permitted to dismiss Juror Brooks for reasons related to his evaluation of the sufficiency of the
evidence. See id.
Under these circumstances, we conclude the trial court abused its discretion in finding
Juror Brooks disqualified, removing him from service, and replacing him with the alternate juror.
Harm Analysis
We must now address whether the erroneous removal of Juror Brooks from the
jury was harmful to appellant. For purposes of this opinion, we will assume, without deciding,
that the trial court’s erroneous removal of Juror Brooks constituted statutory error and must
therefore be analyzed under Texas Rule of Appellate Procedure 44.2(b).10 See id. at 786; Tex. R.
App. P. 44.2 (b). Under Rule 44.2(b), “[a]ny other error, defect, irregularity, or variance that does
not affect substantial rights must be disregarded.” Tex. R. App. P. 44.2(b). A substantial right is
affected when the error had a substantial and injurious effect or influence in determining the jury’s
10
Appellant did not complain at trial, as he does on appeal, that the removal of Juror Brooks
violated his right to due process. The discussions and argument concerning Brooks’s
disqualification or disability only referenced article 33.011. Thus, his complaint that the removal
violated his constitutional right to due process was not preserved for appellate review. See Tex. R.
App. P. 33.1(a) (to preserve complaint for appellate review, party must have presented specific and
timely request, motion, or objection to trial court and, further, must have obtained adverse
ruling); see also Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011); Peavey v. State,
248 S.W.3d 455, 470 (Tex. App.—Austin 2008, pet. ref’d).
18
verdict. Scales, 380 S.W.3d at 786 (citing King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.
1997)); Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010).
The testimony of Juror Brooks indicated that the other members of the jury were
seemingly in favor of conviction, whereas he was not due to his concerns about the sufficiency of
the evidence proving guilt. If the jury had been allowed to continue deliberating, his uncertainty or
reasonable doubt may have been resolved by further deliberations. This would have produced a
verdict. Or, he may have maintained his views of the evidence and his reasonable doubt, resulting
in a deadlocked jury. This would have resulted in a mistrial. See Tex. Code Crim. Proc. art. 36.31
(procedure for when jury cannot agree). Because of the error, neither possibility was allowed to
occur. See Scales, 380 S.W.3d at 786–87. Given the record before us, which demonstrates that Juror
Brooks considered the evidence insufficient to prove appellant’s guilt beyond a reasonable doubt and
therefore felt uncomfortable rendering a guilty verdict, it appears a mistrial was the more probable
of the possible outcomes. After he was replaced, the jury returned a guilty verdict, sufficiently
demonstrating that the erroneous removal had “a substantial and injurious influence in determining
the jury’s verdict.” See id. Thus, the error of removing Juror Brooks affected a substantial right of
appellant’s. We sustain appellant’s first point of error.
II.
Hearsay Evidence
In four points of error, appellant complains about the admission of hearsay evidence.
In his second point of error, he asserts that the trial court erred in allowing Officer Preston to testify
19
about the substance of C.E.’s written statement detailing the sexual assault.11 In his third point of
error, appellant maintains that the trial court erred in admitting the written statements that C.E. and
her mother provided to Officer Preston when reporting the assault. In his sixth point of error,
appellant argues that the trial court erred in overruling his hearsay objection to an out-of-court
statement concerning appellant’s alleged admission of guilt to his wife. In his seventh point of error,
appellant contends the trial court erred when it admitted, as an excited utterance, C.E.’s hearsay
statements to her cousin describing the sexual assault.
The State argues that Officer Preston’s testimony detailing C.E.’s account of the
incident, the written statements of C.E. and her mother, and Detective Carrasco’s testimony
concerning appellant’s alleged admission of guilt to his wife were not objectionable hearsay because
the State did not offer them for the truth of the matters asserted but rather “to explain why the
witness undertook the investigative action that he undertook.” The State further maintains that
C.E.’s statements disclosing the assault to B.E. constitute an excited utterance.
Standard of Review
We review a trial court’s ruling on the admission or exclusion of evidence for an
abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). A trial court
abuses its discretion only if its decision “lies outside the zone of reasonable disagreement.” Martinez
v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Montgomery v. State, 810 S.W.2d 372, 391
(Tex. Crim. App. 1990) (op. on reh’g). We consider the ruling in light of what was before the trial
11
It is clear from the officer’s testimony that he received details of the assault from C.E. in
both oral and written form, first from his interview of her and then afterwards when she produced
a written statement. We construe this point of error as complaining about the officer’s repetition of
the details of the sexual assault provided by C.E., whether orally or in written form.
20
court at the time the ruling was made and uphold the trial court’s decision if it lies within the zone
of reasonable disagreement. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009).
Hearsay
Hearsay is a statement, other than one made by the declarant while testifying at trial,
that is offered to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay is
inadmissible except as provided by statute or the rules of evidence. Tex. R. Evid. 802. A statement
not offered to prove the truth of the matter asserted is not hearsay. Dinkins v. State, 894 S.W.2d 330,
347 (Tex. Crim. App. 1995).
Information Acted On
The State may offer out-of-court statements in evidence without violating the hearsay
rule to explain why the defendant became the subject of the investigation. See Dinkins, 894 S.W.2d
at 347. “An arresting officer should not be put in the false position of seeming just to have happened
upon the scene, he should be allowed some explanation of his presence and conduct.” Schaffer
v. State, 777 S.W.2d 111, 114–15 (Tex. Crim. App. 1989). Therefore,“testimony by an officer that
he went to a certain place or performed a certain act in response to generalized ‘information
received’ is normally not considered hearsay because the witness should be allowed to give some
explanation of his behavior.” Poindexter v. State, 153 S.W.3d 402, 408 (Tex. Crim. App. 2005).
“But details of the information received are considered hearsay.” Id. The officer “should not be
permitted to relate historical aspects of the case, replete with hearsay statements in the form of
complaints and reports, on the ground that [he] was entitled to tell the jury the information upon
which [he] acted.” Schaffer, 777 S.W.2d at 114–15. “The appropriate inquiry focuses on whether
21
the ‘information received’ testimony is a general description of possible criminality or a specific
description of the defendant’s purported involvement or link to that activity.” Head v. State,
4 S.W.3d 258, 261 (Tex. Crim. App. 1999).
Initially, we note that Officer Preston was a patrol officer, not an investigator. In fact,
in offering his testimony, the State emphasized that his duties in this case did not
include investigatory responsibilities. During direct examination, the prosecutor initiated the
following exchange:
Q. Now, when you’re on patrol -- I mean, your duties are very different than a
detective, aren’t they?
A. Yes, ma’am.
Q. What’s the difference, I guess? Or what do you understand that your role is
when you’re on patrol versus, say, if you were, like, a detective in the case?
A. My role as patrol is to be in the city as a deterrent to crime and to just patrol
around and be of service.
Q. Okay. When you take a report, are you the -- I guess, do you get the initial
facts?
A. Yes, ma’am.
Q. Okay. Do you continue on to do any kind of in-depth investigation like a
detective would do?
A. Not in all cases, no.
Q. Okay. In these types of cases, do you generally -- does the patrol officer, is
he the one who continues on the investigation if you have a report of sexual
assault?
A. No, ma’am.
Q. Okay. Now, in this case, can you tell the jury exactly what you did once you
got to the police department?
22
A. I arrived at the police department, I met with Rosie, spoke with her as to how
I can help her. She stated her daughter had been sexually assaulted.
At this point, defense counsel objected on hearsay grounds. The trial court sustained the objection.
The prosecutor then averred, “I’m not offering it for the truth of the matter asserted, Your Honor,
I’m just offering it to show what information he acted upon.” The trial court then impliedly
overruled the hearsay objection by giving a limiting instruction to the jury before allowing the
prosecutor to continue questioning.12 The prosecutor then continued questioning the officer about
his limited role in the case:
Q. And just to clarify, Officer Preston, when you’re taking a report from people,
you’re just taking down what they’re telling you, you’re not going out and
verifying the truth of it or not; is that right?
A. Yes, ma’am.
Q. Okay. So we’re going to talk about what you were told as far as just the
information that you were taking down. But you, yourself, didn’t
independently verify the truth of it or nontruth of it.
A. No, ma’am.
Later, when appellant objected to the State’s offer of the written statements of C.E.
and her mother on hearsay grounds, the prosecutor responded:
12
The trial court instructed the jury:
As to that statement as to what the third person said, the jury may choose to consider
it or not consider it. If the jury chooses to consider it, they only may consider it for
information that the officer acted on and not for the truth of what was asserted in that
statement.
23
Judge, I’m not going to waste the Court’s time by restating everything that
I’ve said with regard to that it’s not offered for the truth of the matter asserted. This
officer is entitled to talk about what he acted on, what he did, what he obtained, and
that’s not hearsay. It’s not a hearsay exception, it’s not hearsay in any form.
The jury has been admonished now, I think by my count, at least three times
that this is not being offered because -- to show that it’s true, it’s being offered to
show what this police officer acted upon, the information that he took and what he
did afterwards.
Subsequently, on redirect examination, the prosecutor again questioned Officer Preston about his
limited duties:
Q. [Defense counsel] asked you if you did a whole bunch of different things.
But we talked about as a patrol officer, those things that he just asked you
about, that’s not your job to do those things, is it?
A. Not in reference to this case or these types of cases, no.
Q. Okay. So when he’s asking you all these things that you didn’t do this, you
didn’t do that, those were all things that you weren’t supposed to be doing,
right?
A. Yes, ma’am.
It is difficult to discern how C.E.’s hearsay statements to the officer about the sexual assault or either
of the written statements provided to the officer were “information acted upon,” as the State
contends, when the record explicitly reflects that the officer did not have the duty or responsibility
to act on such information, nor did he do so.
Nevertheless, even assuming Officer Preston had “acted upon” the information
received during his interview of C.E. or contained in the written statements he obtained, his
testimony at trial provided a complete account of C.E.’s description of the sexual assault, revealing
the specific details he received from C.E. The officer’s testimony is replete with “[C.E.] said . . .”
24
preceding particular facts given by C.E. His testimony was not merely a generalized description of
possible criminality that explained how appellant came to be a suspect but contained specific details
about the sexual assault, all of which he obtained from his interviews of C.E. and her mother and
their written statements. Thus, he “provided far greater detail than was reasonably necessary to
explain why” he decided to forward the case to the Criminal Investigation Division for investigation
(the only action he took after receiving the information). See Langham v. State, 305 S.W.3d 568,
580 (Tex. Crim. App. 2010) (detective’s representation of confidential informant’s statements
provided far greater detail than was reasonably necessary to explain why police decided to
investigate appellant’s residence). In the same way, C.E.’s written statement and her mother’s
written statement provided specific details of the incident. They too provided more than a general
description of possible criminal activity but instead gave a detailed description of appellant’s
involvement in such criminal activity (his perpetration of the sexual assault). Officer Preston’s
testimony and the written statements were inadmissible hearsay.
All of this hearsay evidence—Officer Preston’s testimony about C.E.’s statements,
C.E.’s written statement, and Rosie’s written statement—was not offered to explain how appellant
became the focus of a police investigation. The hearsay evidence went far beyond the permissible
general description of information received about possible criminality and instead provided specific
details and descriptions of appellant’s involvement in the sexual assault. Consequently, this
evidence was inadmissible, and the trial court erred in overruling appellant’s hearsay objections and
admitting the evidence.
25
Excited Utterance
Excited utterances are an exception to the hearsay rule. An excited utterance is a
“statement relating to a startling event or condition made while the declarant was under the
stress of excitement caused by the event or condition.” Tex. R. Evid. 803(2); Salazar v. State,
38 S.W.3d 141, 154 (Tex. Crim. App. 2001). The exception is based on the assumption that the
declarant is not, at the time of the statement, capable of the kind of reflection that would enable him
to fabricate information. Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005); see
Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (“The basis for the excited utterance
exception is a psychological one, namely, the fact that when a man is in the instant grip of violent
emotion, excitement or pain, he ordinarily loses the capacity for reflection necessary to the
fabrication of a falsehood and the ‘truth will come out.’”). The statement is trustworthy because it
represents an event speaking through the person rather than the person speaking about the event.
Zuliani, 97 S.W.3d at 595; Lagunas v. State, 187 S.W.3d 503, 512 (Tex. App.—Austin 2005, pet.
ref’d). For the excited-utterance exception to apply, (1) the exciting event must be startling enough
to evoke a truly spontaneous reaction from the declarant, (2) the reaction to the startling event must
be quick enough to avoid the possibility of fabrication, and (3) the resulting statement should
be sufficiently “related to” the startling event to ensure the reliability and trustworthiness of
that statement. McCarty v. State, 257 S.W.3d 238, 241–42 (Tex. Crim. App. 2008) (discussing
similarity between Rule 803(2) “excited utterance” exception and common law “spontaneous
utterance” exception).
The primary factor rendering an excited utterance reliable is the spontaneous nature
of the statement. Tezeno v. State, 484 S.W.2d 374, 379 (Tex. Crim. App. 1972); Mumphrey v. State,
26
155 S.W.3d 651, 658 (Tex. App.—Texarkana 2005, pet. ref’d). The statement must have been made
before the declarant’s excitement caused by the startling event or condition has abated. Zuliani,
97 S.W.3d at 596; see, e.g., Wood v. State, 18 S.W.3d 642, 652 (Tex. Crim. App. 2000) (hearsay
statement properly excluded because it was separated from event it concerned by ten to twelve hours
and declarant’s behavior in interim did not indicate any excitement or nervousness on declarant’s
part). The key to this hearsay exception is that the statement be made without reflection and an
opportunity to fabricate. Apolinar, 155 S.W.3d at 186 (examining record for evidence that declarant
did not have meaningful opportunity to reflect); see Martinez v. State, 178 S.W.3d 806, 815 (Tex.
Crim. App. 2005) (must be shown that declarant had no time or opportunity to calm herself and
reflect on two-day old events); Harris v. State, 133 S.W.3d 760, 772 (Tex. App.—Texarkana 2004,
pet. ref’d) (whether declarant had opportunity to reflect and fabricate was dispositive determination).
The startling event need not be the original offense but can be a subsequent event,
so long as it is itself startling or shocking. Harvey v. State, 123 S.W.3d 623, 630 (Tex.
App.—Texarkana 2003, pet. ref’d); see McCarty, 257 S.W.3d at 240 (“[U]nder the excited-utterance
exception, the startling event may trigger a spontaneous statement that relates to a much earlier
incident.”). Further, the requisite excitement that provokes or induces the spontaneous statement
may be a condition, such as physical pain, fear, or mental anguish. Salazar, 38 S.W.3d at 154.
However, a shocking or startling event or condition must trigger the utterance. See Harvey,
123 S.W.3d at 630; see also Sellers v. State, 588 S.W.2d 915, 918–19 (Tex. Crim. App. 1979).
We review a trial court’s determination of whether evidence is admissible under
the excited-utterance exception to the hearsay rule for an abuse of discretion. Wall v. State,
184 S.W.3d 730, 743 (Tex. Crim. App. 2006); Lagunas, 187 S.W.3d at 512. Factors we may
27
consider in evaluating whether a statement qualifies as an excited utterance include the length of
time between the occurrence and the statement, the characteristics of the declarant, whether the
statement is made in response to a question, and whether the statement is self-serving. Apolinar,
155 S.W.3d at 187; Lagunas, 187 S.W.3d at 512. The ultimate inquiry is whether the emotions,
excitement, fear, or pain of the event or condition still dominated the declarant at the time of the
statement. Apolinar, 155 S.W.3d at 186–87; Lagunas, 187 S.W.3d at 512; see Coble, 330 S.W.3d
at 294.
According to B.E.’s testimony, she and C.E. were in her room when her sister came
into the room and mentioned appellant’s name in conversation. C.E. then commented that “she
didn’t like him (appellant)” and asked B.E., “Can I tell you something?” B.E. testified that C.E.
expressed that “she was scared to tell anybody,” but she was able to convince C.E. to tell her what
happened. When the prosecutor asked B.E. whether C.E. “seem[ed] to be under the emotions of
what had happened to her” when she described the assault, B.E. answered affirmatively, indicating
that she knew C.E. was upset because she “could hear it in her voice that she was shaky” and she saw
tears coming down C.E.’s face.
While there is no question that C.E. was emotional when she told her cousin about
the assault, the test is whether, at the time of the utterance, C.E. was under domination of the
emotions triggered by a startling event, either the original sexual assault or, alternatively, the mention
of appellant’s name.13 We conclude that C.E.’s disclosure of the assault to her cousin does not
13
In its brief, the State maintains that the startling event was not the sexual assault but “fear
of hatred and ostracizing by the victim’s own family.” However, while the requisite excitement
that provokes the spontaneous statement may be a condition, such as fear, see Salazar v. State,
38 S.W.3d 141, 154 (Tex. Crim. App. 2001), the fear the State describes here was not a triggering
condition. The record does not reflect that her fear of her family’s reaction (to the sexual assault or
28
qualify as an excited utterance. While the original assault was undoubtedly shocking, the record
does not support that C.E. was still, three or four months later, dominated by the excited state
produced by the attack. Nor does the record reflect that the mention of appellant’s name was the
type of startling or shocking event contemplated by the excited-utterance rule.14 See, e.g., Barnes
v. State, 165 S.W.3d 75, 81 (Tex. App.—Austin 2005, no pet.) (11-year-old victim’s report of sexual
abuse to police officer not excited utterance because, although testimony established that victim was
crying and “very upset” during description of sexual abuse, there was no evidence that her emotional
state was due to stress of excitement caused by some startling event or condition because sexual
abuse happened five years earlier and there was no evidence of additional startling event that
triggered statements to officer); Harvey, 123 S.W.3d at 631 (outcry six years after sexual assault not
shown to be excited utterance even though declarant was “very upset about it, crying” when, as an
adult, she “broke down” and told her boyfriend details of assault when answering his questions about
paternity of her son).
C.E.’s statements were not made “suddenly” or “immediately” after the startling
event, which we assume, for purposes of analysis, was the sexual assault. She did not blurt out the
statements, but instead made them after seeking permission from her cousin to share information
with her. She also prefaced them by indicating that she was scared to tell because, according to B.E.,
“she felt like if she would have told somebody, then the whole family would hate her even though
it’s not her fault.” Also, C.E. was fifteen years old when she told her cousin about the sexual assault.
her disclosure of it) caused C.E. to spontaneously make her statements to her cousin. In fact, the
opposite is true. Her fear prevented her from telling about the assault.
14
We do not hold that the mere mention of a perpetrator’s name cannot constitute a startling
or shocking event, only that it does not under the facts of this case.
29
These circumstances surrounding C.E.’s statements—her age, the delay, her reluctance, and her
contemplation of consequences—all weigh against the spontaneity requirement for the excited-
utterance exception. See Apolinar, 155 S.W.3d at 186 (excited utterance based on assumption that
at time of statement, declarant is not capable of kind of reflection that would enable her to fabricate
information). When the exception is expanded beyond utterances made immediately or soon after
exposure to the startling event or condition, “prevarication becomes a significant possibility.” See
David F. Binder, Trial Practice Series: Hearsay Handbook § 9.7 (4th ed. 2012). “Stress and
prevarication are not mutually exclusive.” Id. Emotions, even strong ones, do not necessarily
demonstrate the lack of time or opportunity to contrive or misrepresent information.
C.E.’s disclosure to her cousin was a narrative of a painful event, not an excited
utterance. See Glover v. State, 102 S.W.3d 754, 764 (Tex. App.—Texarkana 2002, pet. ref’d). Her
delay in disclosing the assault, her reluctance to tell as indicated by seeking permission to share
“something” with her cousin, her expression of concern about the family’s reaction, and her age
support our conclusion that, at the time of the statements, C.E. had had the time, opportunity, and
capacity to reflect before telling her cousin about the sexual assault. Thus, C.E.’s statements did not
qualify as an excited utterance and therefore do not fall within this exception to the hearsay rule.
Accordingly, we conclude that the trial court erred in admitting C.E.’s hearsay statements through
her cousin’s testimony.
Appellant’s Alleged Admission
In his sixth point of error, appellant asserts that the trial court erred in admitting
Detective Carrasco’s testimony concerning appellant’s alleged admission of guilt to his wife.
30
Preservation of error is a systemic requirement on appeal. Ford v. State,
305 S.W.3d 530, 532 (Tex. Crim. App. 2009). A reviewing court should not address the merits of
an issue that has not been preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473–74 (Tex.
Crim. App. 2010) (citing Ford, 305 S.W.3d at 532). To preserve an issue for appellate review, a
party must timely object, stating the specific legal basis for the objection. Tex. R. App. P. 33.1(a)(1).
Further, with two exceptions that do not apply here, a party must continue to object each time the
objectionable evidence is offered.15 Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003).
The State introduced evidence about appellant’s purported admission of guilt to his
wife during direct examination of the detective:
Q. Well, let me ask you this: Did you receive any information on the 29th that
seemed to corroborate the fact that this defendant had had intercourse with
[C.E.]?
A. Yes, ma’am, I did.
Q. And was that, by your understanding, an admission that the defendant had
made to his wife?
A. Yes, ma’am.
At that point, appellant objected on hearsay grounds. The trial court overruled the objection “under
the circumstances.”
15
The two exceptions require counsel to either (1) make a running objection, or (2) request
a hearing outside the presence of the jury. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App.
2003) (citing Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)).
31
Later, on redirect, the prosecutor asked Detective Carrasco,
Q. And we had talked earlier about the fact that this defendant had actually
corroborated -- without getting into the statement that she made -- but that
this defendant corroborated to his wife that this actually did occur, correct?
A. Correct.
Appellant did not object. Thus, although appellant initially objected, he did not continue to object
to the evidence of his alleged admission to his wife. Therefore, he did not preserve this complaint
for appeal. See Martinez, 98 S.W.3d at 193. Accordingly, we overrule appellant’s sixth point
of error.
Harm Analysis
The erroneous admission of evidence is non-constitutional error. Kirby v. State,
208 S.W.3d 568, 574 (Tex. App.—Austin 2006, no pet.); see Casey v. State, 215 S.W.3d 870, 885
(Tex. Crim. App. 2007). Non-constitutional error requires reversal only if it affects the substantial
rights of the accused. See Tex. R. App. P. 44.2(b); Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim.
App. 2011). We will not overturn a criminal conviction for non-constitutional error if, after
examining the record as a whole, we have fair assurance the error did not influence the jury, or
influenced the jury only slightly. Barshaw, 342 S.W.3d at 93; Kirby, 208 S.W.3d at 574.
In assessing potential harm, our focus is not on whether the outcome of the trial was
proper despite the error but on whether the error had a substantial or injurious effect or influence on
the jury’s verdict. Barshaw, 342 S.W.3d at 93–94. We review the entire record to ascertain the
effect or influence on the verdict of the wrongfully admitted evidence. Id. at 93; see Coble,
330 S.W.3d at 280 (in conducting harm analysis “we examine the entire trial record and calculate,
32
as much as possible, the probable impact of the error upon the rest of the evidence”). We consider
all the evidence that was admitted at trial, the nature of the evidence supporting the verdict, the
character of the alleged error, and how the evidence might be considered in connection with other
evidence in the case. Barshaw, 342 S.W.3d at 94. We may also consider the jury instructions, the
parties’ theories of the case, closing arguments, voir dire, and whether the State emphasized the
error. Id.; Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).
We must reverse a conviction for non-constitutional error if we have “grave doubt”
about whether the result of the trial was free from the substantial influence of the error. Barshaw,
342 S.W.3d at 94. “‘Grave doubt’ means that ‘in the judge’s mind, the matter is so evenly balanced
that he feels himself in virtual equipoise as to the harmlessness of the error.’” Id. (quoting Burnett
v. State, 88 S.W.3d 633, 637–38 (Tex. Crim. App. 2002)). “[I]n cases of grave doubt as to
harmlessness the [appellant] must win.” Id.
The erroneously admitted hearsay evidence in this case was not innocuous. C.E.’s
hearsay statements detailing the sexual assault were erroneously admitted in four separate instances,
over objection, before C.E. testified, in both oral and written form. The State emphasized the
hearsay statements throughout trial, asking several witnesses if C.E.’s statements were consistent
with each other.16 In addition, the State referred to C.E.’s hearsay statements, and the consistency
16
Questions about consistency among statements are not necessarily improper, as they may
or may not convey the contents of the out-of-court statement in violation of the hearsay rule. See
Head v. State, 4 S.W.3d 258, 264 (Tex. Crim. App. 1999) (Womack, J., concurring) (in context of
case, “the evidence was offered to prove that there were no inconsistencies at that time in the
investigation which would have called for [the investigator] to take other investigatory steps. The
evidence was that the three persons had given consistent statements, but there was no evidence of
the contents of those statements.”). Here, however, the statements themselves were admitted into
evidence. Thus, the questions about consistency improperly conveyed the content of the statements.
33
among them, in closing arguments: “Consistency over time is a big deal. She was consistent with
her oral statement to [Officer Preston] and her written statement.” The State also referred to Rosie’s
written statement in closing argument and encouraged the jury to look at it during deliberations.
The State suggests that any error in admitting C.E.’s hearsay statements was not
harmful because they were admitted with a limiting instruction.17 We disagree. An instruction that
instructs a jury to consider inadmissible evidence for a limited purpose still instructs a jury to
consider inadmissible evidence. Jackson v. State, 320 S.W.3d 873, 888 (Tex. App.—Texarkana
2010, pet. ref’d) (citing Bjorgaard v. State, 220 S.W.3d 555, 562 (Tex. App.—Amarillo 2007), pet.
dism’d, improvidently granted, 253 S.W.3d 661 (Tex. Crim. App. 2008)). The complained-of
hearsay evidence should not have been considered for any purpose. The limiting instruction does
not mitigate harm or render the error harmless. We also note that while initially admitted for limited
consideration, the written statements were subsequently admitted “for all purposes.”
The State further asserts that any error in admitting C.E.’s hearsay statements
(through the officer’s testimony, her cousin’s testimony, or her written statement) or Rosie’s written
statement was harmless because the witnesses ultimately testified at trial. Again, we disagree. First,
we reject the proposition that the subsequent testimony of a declarant automatically renders the
earlier improper admission of a hearsay statement harmless. If that were the case, the prohibition
on hearsay evidence would cease to exist in any meaningful way, as its operation would be
dependent on whether a declarant testifies.
17
The State makes this argument only with respect to Officer Preston’s testimony, the
written statements, and appellant’s statement to his wife. C.E.’s hearsay statements to B.E. were
admitted without a limiting instruction.
34
Second, while it is true that error in the admission of evidence may be rendered
harmless when substantially the same evidence is admitted elsewhere without objection, see
Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986) (“Inadmissible evidence can be
rendered harmless if other evidence at trial is admitted without objection and it proves the same fact
that the inadmissible evidence sought to prove.”), we do not believe this case presents such a
situation. The doctrine of harmless error the State relies on is based on the concept of waiver. See
Leday v. State, 983 S.W.2d 713, 717–18 (Tex. Crim. App. 1998) (explaining that Texas applies
“futility rule,” meaning that despite trial court’s ruling that evidence is admissible, party must keep
making futile objections on pain of waiver); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim.
App. 1991) (“[I]t is well settled that an error in admission of evidence is cured where the same
evidence comes in elsewhere without objection; defense counsel must object every time allegedly
inadmissible evidence is offered.”). The premise is that because the defendant failed to object to the
inadmissible evidence at some point, he waived the right to complain about its admission elsewhere.
Here, however, appellant objected to the admission of C.E.’s hearsay statements throughout trial.
The only time evidence of similar facts was admitted without objection was through C.E.’s own
testimony. However, her direct testimony about the sexual assault was not objectionable evidence,
only her hearsay statements about it were. Thus, allowing her direct testimony to come in “without
objection” did not constitute a waiver of the objection to her hearsay statements.
We further reject the State’s argument about the mitigating effect of witnesses
testifying at trial, because Rosie’s subsequent testimony at trial did not render the erroneous
35
admission of her written statement harmless.18 Other than appellant’s identity as the perpetrator, she
did not testify to the contents of her statement, so the same information did not come in through
her testimony.
This case was, as these cases typically are, a “he said, she said” case. See Hammer
v. State, 296 S.W.3d 555, 561–62 (Tex. Crim. App. 2009) (“Sexual assault cases are frequently ‘he
said, she said’ trials in which the jury must reach a unanimous verdict based solely upon two
diametrically different versions of an event, unaided by any physical, scientific, or other
corroborative evidence.”). The only direct evidence of the sexual assault was C.E.’s account in her
testimony.19 The State presented no corroborating evidence.20
18
We note that Rosie’s written statement contained multiple levels of hearsay. See Tex. R.
Evid. 805 (“Hearsay included within hearsay is not excluded under the hearsay rule if each part of
the combined statements conforms with an exception to the hearsay rule provided in these rules.”).
First, she was the declarant of the written statement. The content of her statement was not
admissible under any hearsay exception. Further, the statement contained hearsay statements of her
daughter recounting the details of the sexual assault. These statements were not admissible under
any hearsay exception.
19
We do not suggest that C.E.’s testimony alone would be insufficient to support a
conviction for sexual assault. See Tex. Code Crim. Proc. art. 38.07(a),(b)(1); Perez v. State,
113 S.W.3d 819, 838 (Tex. App.—Austin 2003, pet. ref’d), overruled on other grounds by Taylor
v. State, 268 S.W.3d 571, 587 (Tex. Crim. App. 2008). Nor do we suggest that the State has any
burden to produce any corroborating or physical evidence. See Martines v. State, 371 S.W.3d 232,
240 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing Benton v. State, 237 S.W.3d 400, 404
(Tex. App.—Waco 2007, pet. ref’d)). We merely note the nature of the evidence supporting the
verdict and how the inadmissible hearsay evidence might be considered in connection with other
evidence in the case in our evaluation of the harmful effect of the erroneously admitted evidence.
20
We note that appellant’s purported admission to his wife could, arguably, be construed as
evidence corroborating C.E.’s account. However, the State offered such evidence for the limited
purpose of showing “the information [the detective] acted upon.” Several times during questioning
about the admission or conversations related to it, the trial court instructed the jury about the limited
purpose. Thus, evidence of appellant’s alleged admission was not substantive evidence of an
admission of guilt. Furthermore, a recording of Detective Carrasco’s phone call to appellant’s wife
asking her about the alleged admission was admitted into evidence. During that call, appellant’s
36
C.E.’s testimony was improperly bolstered by the repetition of her hearsay statements
through Officer Preston’s testimony, her cousin’s testimony, her mother’s written statement, and her
own written statement.21 Moreover, during deliberations the jury asked the court for copies of the
written statements of C.E. and her mother, as well as a copy of the police report. This request alone
supports the conclusion that the erroneously admitted hearsay statements influenced the
jury’s decision.
Viewing the record as a whole, we do not have fair assurance that the erroneous
admission of the complained-of hearsay statements did not influence the jury. In other words, we
have “grave doubt” about whether the result of the trial was free from the substantial influence of
this error. Accordingly, we sustain appellant’s second, third, and seventh points of error.
wife repeatedly told the detective that her husband denied the allegations, said it did not happen, and
told her over and over that “he didn’t do it.” No evidence of an actual admission—what appellant
said to his wife under what circumstances—was admitted, only inferences of such through multiple
hearsay statements. Consequently, we do not consider appellant’s alleged admission to his wife, as
reflected in this record, to be corroborating evidence of guilt.
21
Repetition is an effective method of persuasion. Experimental psychologists have found
that after hearing a plausible statement repeated, the listener becomes more confident that the
statement is true, whether or not it actually is. See, e.g., Wesley G. Moons, Diane M. Mackie
& Teresa Garcia-Marques, The Impact of Repetition-Induced Familiarity on Agreement With Weak
and Strong Arguments, 96 J. PERSONALITY & SOC. PSYCHOL., 32, 42–44 (2009); Kimberlee Weaver,
Stephen M. Garcia, Norbert Schwarz & Dale T. Miller, Inferring the Popularity of an Opinion From
Its Familiarity: A Repetitive Voice Can Sound Like a Chorus, 92 J. PERSONALITY & SOC. PSYCHOL.
821, 832 (2007); Ian Maynard Begg, Ann Anas & Suzanne Farinacci, Dissociation of Processes in
Belief: Source Recollection, Statement Familiarity, and the Illusion of Truth, 121 J. EXPERIMENTAL
PSYCHOL.: GEN. 446, 446 (1992); Lynn Hasher, David Goldstein & Thomas Toppino, Frequency
and the Conference of Referential Validity, 16 J. VERBAL LEARNING & VERBAL BEHAV. 107 (1977).
37
Opinion Testimony
In two points of error, appellant contends that the trial court erred by allowing
improper opinion testimony from Detective Carrasco.
Opinion on Truthfulness of Allegations
In his fourth point of error, appellant maintains that the trial court erred in overruling
his objection to certain questions propounded to Detective Carrasco that elicited his opinion
concerning the truthfulness of C.E.’s allegations.
“[E]xpert testimony that a particular witness is truthful is inadmissible under Rule
702.” Yount v. State, 872 S.W.2d 706, 711 (Tex. Crim. App. 1993). Thus, the State may not elicit
expert testimony that a particular child is telling the truth, or that child complainants as a class are
worthy of belief. Pavlacka v. State, 892 S.W.2d 897, 903 n.6 (Tex. Crim. App. 1994); Yount,
872 S.W.2d at 711; cf. Barshaw v. State, 320 S.W.3d 625, 629–30 (Tex. App.—Austin 2010), rev’d
on other grounds, 342 S.W.3d 91 (Tex. Crim. App. 2011). Nor may an expert offer an opinion on
the truthfulness of a child complainant’s allegations. Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim.
App. 1997). Such testimony “crosses the line” between evidence that will genuinely assist the jury
and that which usurps the jury’s function to judge the credibility of witnesses. Pavlacka, 892 S.W.2d
at 903 n.6; Yount, 872 S.W.2d at 708. Instead of experts, it is jurors who must draw “conclusions
concerning the credibility of the parties in issue.” Yount, 872 S.W.2d at 710; see Brooks v. State,
323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (“[T]he jury is the sole judge of the witnesses’
credibility and the weight to be given their testimony.”).
At the conclusion of Detective Carrasco’s direct examination, the State elicited the
detective’s opinion about C.E.’s interview at the child advocacy center:
38
Q. Was there anything about her demeanor when you’re looking at her body
language or anything about that interview that led -- that gave you any sort of
-- that raised any red flags again? I use that term a lot, but any red flags to
you that she was somehow fabricating the story?
Appellant’s counsel objected, asserting “Counsel is interfering with the providence [sic] of the jury,
that’s for the jury to make up their mind.”22 The trial court overruled the objection. At the
detective’s request, the prosecutor repeated the question:
Q. Sure. Was there anything that you observed about [C.E.]’s demeanor or
anything that you saw in that interview that led you to have any kind of
doubts or red flags about whether or not she was fabricating the story she was
giving the interviewer?
A. No, ma’am.
We agree with appellant that the detective’s answer essentially expressed his opinion that C.E. was
not fabricating her allegations—an inadmissible opinion as to C.E.’s truthfulness. See Lewis v. State,
No. 02-11-00112-CR, 2012 WL 858601, at *1 (Tex. App.—Fort Worth Mar. 15, 2012, no pet.)
(mem. op., not designated for publication) (court construed testimony of CPS investigator that she
did not “see any signs that [child] was being deceptive in any way” when she watched forensic
interview conducted at children’s advocacy center as “falling within scope of the type of expert
testimony deemed inadmissible in Schutz and Yount—an opinion as to the truthfulness of a
22
Assuming counsel was attempting to object to this question because the answer would
“invade the province of the jury,” we note that an expert’s testimony is “not objectionable because
it embraces an ultimate issue to be decided by the trier of fact.” See Tex. R. Evid. 704.
Consequently, it “is no longer a valid objection” to assert that an expert’s testimony “invades the
province of the jury.” Oritz v. State, 834 S.W.2d 343, 348 (Tex. Crim. App. 1992). However,
counsel’s objection was valid under Yount and Schutz because the question elicited an opinion on
the truthfulness of C.E.’s allegations.
39
witness”); see also Kelly v. State, 321 S.W.3d 583, 602 (Tex. App.—Houston [14th Dist.] 2010, no
pet.) (concluding State’s expert should not have been allowed to imply that child victims were telling
truth by claiming she would not have agreed to be witness if she saw evidence of deception).
The State asserts that the detective’s testimony was admissible as a lay opinion to
rebut assertions that C.E. was lying. We disagree. If a witness’s general character for truthfulness
has been attacked, Rule of Evidence 608(a) allows, for purposes of rehabilitation, the presentation
of opinion or reputation evidence of that witness’s good character for truthfulness. Michael v. State,
235 S.W.3d 723, 725–26 (Tex. Crim. App. 2007); see Tex. R. Evid. 608(a)(2). However, a lay
witness may not, under Rule 608, testify to the complainant’s truthfulness in the particular
allegations. Fuller v. State, 224 S.W.3d 823, 832–33 (Tex. App.—Texarkana 2007, no pet.); see
Schutz, 957 S.W.2d at 72 (attacking witness’s character for truthfulness does not open door to
evidence supporting truthfulness of specific allegations). Detective Carrasco’s testimony was not
opinion or reputation evidence concerning C.E.’s truthful character. Rather, it was his opinion about
her truthfulness as to these specific allegations—that she was not fabricating the allegations.
We also disagree with the State’s contention that Detective Carrasco’s testimony was
admissible as an expert opinion “because it merely aided the jury in its factual determination.”
Expert testimony must aid, not supplant, the jury’s fact-finding role. See Schutz, 957 S.W.2d at 70;
Yount, 872 S.W.2d at 708. Testimony of the truthfulness of a witness’s testimony or the truthfulness
of allegations is inadmissible because it does more than assist the trier of fact to understand the
evidence or to determine a fact in issue; it decides an issue for the jury. Yount, 872 S.W.2d at 709.
The jurors were the ones tasked with determining whether appellant had sexually assaulted C.E. In
40
this case, that determination hinged on whether they believed C.E. was telling the truth.23 It was for
the jury to decide whether C.E. fabricated the allegations.
Opinion of Appellant’s Guilt
In his fifth point of error, appellant argues that the trial court erred in permitting
Detective Carrasco to testify about the factors he considered in forming his opinion that appellant
was guilty of this sexual assault.
It is well settled that no witness, expert or lay, is competent to voice an opinion about
the guilt or innocence of a defendant. Boyde v. State, 513 S.W.2d 588, 590 (Tex. Crim. App. 1974);
Ex parte Skelton, --- S.W.3d ---, 04-12-00066-CR, 2013 WL 3455583, at *6 (Tex. App.—San
Antonio July 10, 2013, no pet. h.); see DeLeon v. State, 322 S.W.3d 375, 383 (Tex. App.—Houston
[14th Dist.] 2010, pet. ref’d) (prosecutor’s questions to detective asking who committed offenses and
where last offense occurred were improper); Huffman v. State, 691 S.W.2d 726, 730 (Tex.
App.—Austin 1985, no pet.) (trial court erred in permitting prosecutor to ask deputy sheriff if he felt
crime had been committed where appellant claimed he shot victim in self defense); see also Lovell
v. State, No. 12-04-00291-CR, 2006 WL 1916950, at *3 (Tex. App.—Tyler Nov. 22, 2006, pet.
ref’d) (mem. op., not designated for publication) (trial court erred in allowing prosecutor to ask
police officer whether, based on his investigation, officer believed defendant had “violated the law,”
as this was merely expression of opinion that officer believed defendant was guilty).
23
The State acknowledged this fact in its closing argument:
[T]his case is very simple and it boils down to what almost every single child abuse
case boils down to: Do you believe that girl? Do you believe [C.E.]? It’s simple.
It’s no more complicated than that.
41
On direct examination of Detective Carrasco, the prosecutor asked the detective
directly, “And did you believe that Felix Sandoval sexually assaulted [C.E.]?” Appellant’s objection
to the question as “invading the providence -- the province of the jury” was sustained. Subsequently,
on redirect examination of the detective, the prosecutor asked,
Q. Okay. So in a case -- again, not to beat a dead horse, but in a case where we
have a delayed outcry, what are some of the things -- if you don’t have a lot
of physical evidence to look at, what are some of the things in this case that
you looked at when you determined looking at the totality of the [sic] all of
the things that you have to determine that you believe that this defendant had,
indeed, committed the sexual assault of [C.E.]?
Appellant’s counsel again objected, asserting, “Counsel is asking the witness to render an opinion
which invades upon what the jury is supposed to do. And he is not, also, qualified as an expert
witness in this case for that particular purpose of determining whether or not this was truthful or
not.” This time the trial court overruled the objection and instructed the witness that he could answer
the question. After explaining the reasons for the lack of physical evidence, the detective stated,
. . . So, basically, all I had left was [C.E.]’s account of what happened and,
of course, the interview that I conducted with [appellant], which, again, there were
a few things that caught my attention during the course of my interview with him.
In looking back at [C.E.]’s interview and her written statement, it stayed very
consistent.
By providing this answer—explaining his doubts about appellant’s credibility and his belief of C.E.’s
account due to consistency—in response to the particular question asked, the detective expressed his
opinion that appellant was guilty. This was impermissible.
42
Harm Analysis
The erroneous admission of expert testimony is non-constitutional error. Jessop
v. State, 368 S.W.3d 653, 678 (Tex. App.—Austin 2012, no pet.); see Coble, 330 S.W.3d at 280.
Accordingly, any error must be disregarded unless it affected appellant’s substantial rights.
Barshaw, 342 S.W.3d at 94; see Tex. R. App. P. 44.2(b). A substantial right is affected when the
error had a substantial and injurious effect or influence in determining the jury’s verdict. Coble,
330 S.W.3d at 280. If the improperly admitted evidence did not influence the jury or had but a slight
effect on its deliberations, such error is harmless. Id. In analyzing the erroneous admission of expert
testimony, we may consider, among other things: (1) the strength of the evidence of the appellant’s
guilt; (2) whether the jury heard the same or substantially similar admissible evidence through
another source; (3) the strength or weakness of an expert’s conclusions, including whether the
expert’s opinion was effectively refuted; and (4) whether the State directed the jury’s attention to the
expert’s testimony during arguments. See id. at 286–88.
Once again, we observe that though the evidence was legally sufficient, there was not
overwhelming evidence supporting a finding of guilt. See Motilla v. State, 78 S.W.3d 352, 356–57
(Tex. Crim. App. 2002) (reiterating that “overwhelming evidence” of guilt is one consideration in
deciding whether improper admission of evidence was harmful).
Next, the record reflects that the jury heard similar evidence elsewhere. The State
elicited testimony concerning fabricated allegations from Melissa Rodriguez, the forensic interviewer
who interviewed C.E. at the children’s advocacy center. After establishing that Rodriguez had
previously conducted interviews in which she concluded that the child being interviewed was
not being truthful and had fabricated the allegations of abuse, the prosecutor asked about
43
C.E.’s interview:
Q. Okay. Now, we had talked about there’s some things that you know to look
at, from your training and experience, with regard to fabricated stories or
stories that a child might tell if somebody is putting them up to it in some
way. Did you have any of those concerns with your interview with this young
lady, [C.E.]?
A. No, not at all.
...
Q. Okay. Now, when you’re finished with the interview, again, you said that if
you had any concerns about that at all, you would communicate those
concerns to whatever agency, be it CPS or law enforcement; is that correct?
A. That’s correct.
Q. Okay. And did you make any such report of a concern to anyone that was
involved in the investigation of this case?
A. No.
Q. And is that because you didn’t have any concern?
A. There were no red flags at all.
This testimony was admitted without objection. Error in the improper admission of evidence is
harmless if the same or similar evidence is admitted without objection at another point in the trial.
Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010); Valle v. State, 109 S.W.3d 500,
509 (Tex. Crim. App. 2003) (“An error [if any] in the admission of evidence is cured where the same
evidence comes in elsewhere without objection.”). Here, even though the “similar evidence” was
the opinion of a different expert, the content was parallel. The fact that the jury heard similar expert
44
testimony elsewhere without objection, particularly from a witness who was explicitly offered as a
child-abuse expert, mitigates the harm.24
Regarding the strength of the expert’s opinion, we observe that Detective Carrasco’s
opinions were not particularly powerful. Given that he forwarded this case to the district attorney’s
office for prosecution after his investigation, one could logically assume that he found C.E. credible,
her allegations truthful, and believed appellant was guilty of committing this sexual assault.
Finally, while the State referenced the experts’ opinions concerning the truthfulness
of C.E.’s allegations and appellant’s guilt during closing argument, the emphasis was not on
Detective Carrasco. The prosecutor argued:
You have heard from trained, professional people who deal with these kind
of cases day in and day out. They know what to look for. They’ve seen children
lying, they’ve seen children being coached, and they’ve seen children who have been
sexually abused and that’s the majority of what they see.
And they look -- they heard [C.E.] and they knew that he did it. With the
officer, no red flags. You have that, plus you have that she was consistent.
Consistency over time is a big deal. She was consistent with her oral statement to
him and her written statement.
24
We do not hold, or even suggest, that expert opinions are interchangeable such that the
admission of one expert’s opinion automatically eliminates harm in the erroneous admission of
another expert’s opinion merely because they opine about the same topic. Our conclusion here is
based on the opinion testimony in this case and the expertise of the experts who gave it. Both of
these opinions derived from the same source—C.E.’s interview (Carrasco reviewed it while
Rodriguez conducted it)—and were similar in nature (both expressing the opinion that C.E. did not
fabricate the allegations). However, we recognize that though similar in nature, these opinions are
still distinguishable based on areas of expertise. Detective Carrasco’s opinion was based on his
generalized expertise as a law enforcement officer, whereas Rodriguez’s opinion was based on her
specialized expertise as a child-abuse expert. The strength of her opinion derives from her expertise
in that particularized field and mitigates the harm of the erroneous admission of the detective’s more
generalized opinion. Had the situation been reversed, we cannot say that we would necessarily have
found that the admission, without objection, of Detective Carrasco’s opinion substantially mitigated
the harm in an erroneous admission of Rodriguez’s testimony.
45
And then she was interviewed by a forensic interviewer. And Melissa
Rodriguez is one of -- she is the best. She’s good at what she does and she knows
what she’s doing. And she told you that there were no red flags. She told you [C.E.]
was telling the truth. But you didn’t need her to tell you that, did you, because you
saw it when you heard [C.E.]. So over and over again, trained professionals hearing
from [C.E.], and knowing the truth, no red flags. Plus you have [C.E.] and that’s all
you need.
While this argument drew attention to the opinions of both Officer Preston and the forensic
interviewer, it did not directly reference Detective Carrasco but specifically highlighted Rodriguez.
Given these particular circumstances, especially the repetition of similar, arguably
stronger, expert opinions elsewhere in the trial, we conclude that the error in admitting Detective
Carrasco’s testimony did not, by itself, have a substantial and injurious effect on the jury’s
deliberations. Accordingly, we overrule appellant’s fourth and fifth points of error.
Character-Conformity Evidence
In his final two points of error, appellant argues that the trial court erred in admitting
inadmissible character-conformity evidence.
Extraneous-Conduct Evidence
In his eighth point of error, appellant complains that the trial court erred in admitting
extraneous-conduct evidence that he inappropriately touched another child a decade before the
assault at issue here. He argues that this evidence constituted inadmissible character-conformity
evidence under Rule of Evidence 404(b).
46
At trial the State offered evidence of appellant’s extraneous conduct with J.A., C.E.’s
older sister.25 J.A. testified, in general terms, that appellant was known as a “pervert” among the
children in the family. She also indicated that she warned the younger girls, specifically C.E., about
him. J.A. expressed her opinion that appellant “was someone who could potentially hurt children
in a sexual way” because of things he had “tried” with her. She then testified about a specific
25
The record reflects quite a bit of discussion of what evidence relating to appellant’s
extraneous conduct with J.A. would be allowed. The State wanted to offer three instances of
appellant’s conduct with J.A.: (1) touching the inside of her leg when she was alone with him in a
car “when she was tiny,” (2) watching her one night when she woke up, and (3) grabbing her butt
cheeks and pulling her toward his genitals. The trial court addressed three areas of concern: notice,
Rule 404(b) character conformity, and Rule 403 prejudice.
The defense first objected to evidence of extraneous conduct with J.A. during Detective
Carrasco’s testimony on notice grounds, claiming they did not receive proper notice of the State’s
intent to introduce such evidence. The record reflects that the State relied on a paragraph of the
pretrial discovery order to provide the requisite notice. This paragraph stated, “Pursuant to Article
37.07 of the Texas Code of Criminal Procedure and Rules 403, 404 and 609, the State will offer
evidence of the following extraneous conduct of the defendant at the trial of the above cause: All
conduct including speech of the defendant as described within the statements and reports provided
to defense counsel under this order.”
From the record, it appears that the relevant notice language was contained in the offense
report of the detective, which indicated that “when [J.A.] was nine or ten [appellant] tried to touch
her” and the State’s Second Notice of Intent to Introduce Extraneous Offense Evidence which stated
that appellant “touched [J.A.] inappropriately when she was a child.” Defense counsel complained
about the adequacy of the notice, arguing that while there was the suggestion of inappropriate
conduct, there was no indication of how appellant was inappropriate with her. The defense also
objected that this failed to give notice of multiple instances of conduct. The State contended this was
proper notice for all of the incidents of extraneous conduct they offered, arguing, “We didn’t limit
the times that he touched her. We said, ‘You’re on notice that he tried to touch her inappropriately
when she was nine or ten.’ . . . . We didn’t say it was only one specific instance, we said, ‘Nine or
ten.’” When the trial court opined that “one incident does not give notice of all incidents,” the
prosecutor complained that the trial court was improperly limiting the evidence to the detective’s
summary of his review of a third-party interview of the victim. However, the trial court noted that
the State had opted to rely on the pretrial order referencing that summary to provide notice. Thus,
the court concluded that the State failed to provide notice beyond what was contained in the offense
report. Accordingly, the trial court limited the extraneous-offense evidence to one incident of
inappropriate touching.
47
incident that occurred in her aunt’s bedroom when she was nine or ten years old.26 According to
J.A., she went into her aunt’s room to look for medicine to put on a sore tooth. Appellant walked
in the room and startled her so she left the room. He then called her back in to the room to ask what
she had been doing. She went back in there to explain and show him her tooth, standing between
his legs as he sat on the bed. J.A. testified that appellant then grabbed her butt, with one hand on
each cheek, and pulled her toward him, toward his “private” area. She said that she did not
remember if he looked at her sore tooth because “it was so quick.” She did recall that he had a
“creepy” smile on his face and said the look he gave her “wasn’t the way you look at a child” but
“was more serious, as if he was seeing me [as] someone much more grown up.” She said that she
26
Before the prosecutor elicited the details about the incident, the court granted appellant’s
request for a limiting instruction. The judge instructed the jury,
Ladies and Gentlemen, you may hear evidence relating to an allegation of an
extraneous offense, another offense. You may choose to consider that evidence or
you may choose not to consider it. If you do choose to consider it, you may only
consider it for the following reasons: intent, plan, motive, preparation or opportunity.
Furthermore, you may only consider that extraneous offense, or alleged
extraneous offense, if you believe it beyond a reasonable doubt.
The court gave a similar instruction in the jury charge regarding limited consideration of any
extraneous-offense evidence:
You are instructed that if there is any testimony before you in this case
regarding the defendant’s having committed offenses other than the offense alleged
against him in the indictment in this case, you cannot consider said testimony for any
purpose unless you find and believe beyond a reasonable doubt that the defendant
committed such other offenses, if any were committed, and even then you may only
consider the same in determining the defendant’s motive, opportunity, intent,
preparation, or plan in connection with the offense alleged against him in the
indictment in this case, and for no other purpose.
48
struggled out of his hold and ran out of the room.27 J.A. testified that she never told her mom about
the incident “directly” but said she made her mom aware that “[appellant] was someone you had to
watch out for.”
Standard of Review
We review a trial court’s decision to admit or exclude evidence under an
abuse-of-discretion standard. Martinez, 327 S.W.3d at 736. A trial court abuses its discretion only
if its determination “lies outside the zone of reasonable disagreement.” Id.; Casey, 215 S.W.3d at
879. A trial court’s decision to admit evidence of an extraneous offense is generally within this zone
if the evidence shows that (1) an extraneous transaction is relevant to a material, non-propensity
issue, and (2) the probative value of that evidence is not substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading of the jury. De La Paz v. State, 279 S.W.3d
336, 344 (Tex. Crim. App. 2009). Furthermore, if the trial court’s evidentiary ruling is correct on
any theory of law applicable to that ruling, we will uphold that decision. Id.
Rule 404(b)
Texas Rule of Evidence 404(b) prohibits the admission of evidence of extraneous
offenses or bad acts to prove a person’s character or to show that the person acted in conformity with
that character. See Tex. R. Evid. 404(b). However, such evidence may be admissible when it has
27
Although the court limited the extraneous-conduct evidence to this one touching incident,
the prosecutor initially elicited testimony that there were “at least three” instances where appellant
made J.A. “feel uncomfortable.” After describing the incident in her aunt’s bedroom, the prosecutor,
apparently misunderstanding the court’s ruling, attempted to elicit testimony about another time
“where [J.A. was] alerted that [appellant] had a sexual interest in [her].” Appellant’s objection to
lack of notice about further extraneous conduct was sustained.
49
relevance apart from character conformity. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App.
2011). Extraneous misconduct may be admissible for some other purpose, such as to show motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex.
R. Evid. 404(b); Montgomery, 810 S.W.2d at 387–88. This list is illustrative—the exceptions are
neither mutually exclusive nor collectively exhaustive. See De La Paz, 279 S.W.3d at 343. Rebuttal
of a defensive theory is one of the “other purposes” for which extraneous-offense evidence may be
admitted under Rule 404(b). Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Moses
v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). “‘Rule 404(b) is a rule of inclusion rather
than exclusion.’” De La Paz, 279 S.W.3d at 343 (quoting United States v. Bowie, 232 F.3d 923, 929
(D.C. Cir. 2000)). “The rule excludes only that evidence that is offered (or will be used) solely for
the purpose of proving bad character and hence conduct in conformity with that bad character.” Id.
(citing Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996)) (emphasis added).
If a defendant objects on the grounds that the evidence is not relevant, violates Rule
404(b), or constitutes an extraneous offense, the State must show that the uncharged misconduct
evidence has relevance apart from showing character. Rankin, 974 S.W.2d at 718 (citing
Montgomery, 810 S.W.2d at 387); see De La Paz, 279 S.W.3d at 343. The mere fact that the State
offers evidence for a purpose other than character conformity, or any of the other enumerated
purposes in Rule 404(b), does not, in itself, make the evidence admissible. DeLeon v. State,
77 S.W.3d 300, 312 (Tex. App.—Austin 2001, pet. ref’d) (citing Rankin, 974 S.W.2d at 719).
50
Extraneous-offense evidence will generally be relevant, but the permissible purposes for which the
State is offering it may not be.28 Id.
Motive
The State argued at trial that the evidence of extraneous conduct was admissible to
show appellant’s motive. Although proof of motive is not a required element in criminal cases,
“evidence of motive is one kind of evidence [that aids in] establishing proof of an alleged offense.”
Crane v. State, 786 S.W.2d 338, 349–50 (Tex. Crim. App. 1990). However, for evidence of motive
to be admissible, the evidence must tend to raise an inference that the accused had a motive to
commit the alleged offense for which he is on trial.29 Bush v. State, 628 S.W.2d 441, 444 (Tex.
Crim. App. 1982); Rodriguez v. State, 486 S.W.2d 355, 358 (Tex. Crim. App. 1972). “[M]otive
refers to an emotion that would provoke or lead to the commission of a criminal offense.”
Rodriguez, 486 S.W.2d at 358. Evidence to show motive is the circumstantial evidence that would
appear to cause or produce the emotion that would in turn provoke or incite the commission of the
criminal offense. Id.; see, e.g., Ladd v. State, 3 S.W.3d 547, 568 (Tex. Crim. App. 1999) (evidence
28
Here, the State asserted at trial that appellant’s fabrication defense brought all of the
enumerated exceptions listed in Rule 404(b) into play and wanted to have all of them included in the
court’s limiting instruction. The court, however, determined that the evidence did not raise all of
the exceptions and concluded that a limiting instruction on the entire “laundry list” would not be
appropriate. After several discussions, the judge limited the jury’s consideration to motive,
opportunity, intent, preparation, and plan.
29
Evidence of an extraneous offense to show motive is usually required to relate or pertain
to other acts by the accused against the victim of the crime for which the accused is presently being
prosecuted. Foy v. State, 593 S.W.2d 707, 708–09 (Tex. Crim. App. 1980); Zuliani v. State,
903 S.W.2d 812, 827 (Tex. App.—Austin 1995, pet. ref’d). This Court has previously held that
when, as in this case, the acts do not relate to the same victim, they are not admissible to show
motive. See Zuliani, 903 S.W.2d at 827.
51
of defendant’s use of cocaine on night of murder was admissible to show defendant was motivated
to kill in order to obtain money for cocaine); Porter v. State, 623 S.W.2d 374, 386 (Tex. Crim. App.
1981) (evidence that defendant had committed robbery 11 days earlier was relevant to show his
motive for murdering police officer apprehending him).
On appeal, the State does not explain how appellant’s touching J.A. on the butt when
she was nine or ten years old and pulling her toward him with a creepy smile on his face produced
the emotion that provoked appellant to force C.E. to have sexual intercourse with him over a decade
later. We conclude there is an insufficient relationship between the extraneous conduct and the
State’s efforts to establish appellant’s motive for committing the charged offense. See Lopez
v. State, 288 S.W.3d 148, 165–66 (Tex. App.—Corpus Christi 2009, pet. ref’d) (evidence of
extraneous acts with third party—consensual sexual activity without condom and failure to disclose
HIV positive status—did not establish motive for defendant to sexually assault victim).
Accordingly, we find that the extraneous acts had no relevance as to motive.
Opportunity
Evidence of an extraneous offense may be admissible under Rule 404(b) to rebut a
defense of “lack of opportunity” or “impossibility.” See, e.g., Wheeler v. State, 67 S.W.3d 879,
887–88 (Tex. Crim. App. 2002) (extraneous offense involving another child “with family members
in the immediate vicinity” admissible to rebut claim of lack of opportunity and impossibility where
defense was that defendant was never alone with child victim); Powell v. State, 63 S.W.3d 435, 438
(Tex. Crim. App. 2001) (extraneous sexual offenses admissible in sexual abuse case where defense
claimed lack of opportunity to commit offense because he was never alone with victim and many
other children were always present); Abshire v. State, 62 S.W.3d 857, 860 (Tex. App.—Texarkana
52
2001, pet. ref’d) (extraneous-offense evidence admissible in child sexual assault case where defense
was lack of opportunity and all of defendant’s family members testified that he never had
opportunity to commit offense in his home because no room was ever locked and people were
always in position to see what transpired in house).
The issue of opportunity, or lack thereof, was not raised in this case. In fact, contrary
to claiming that he lacked the opportunity, appellant arguably conceded that he had the opportunity
to commit the offense when he acknowledged to the detective in the interview that he remembered
the occasion when C.E. spent the night at his house that summer and recalled that his wife left the
house for about 10 to 15 minutes. Thus, the extraneous conduct was not relevant to the uncontested
issue of opportunity.
Intent
An extraneous offense may be admissible to prove the culpable mental state required
for the charged offense if the required intent cannot be inferred from the act itself, or if the accused
presents evidence to rebut that inference. Brown v. State, 96 S.W.3d 508, 512 (Tex. App.—Austin
2002, no pet.); see Prior v. State, 647 S.W.2d 956, 959 (Tex. Crim. App. 1983); Dunklin v. State,
194 S.W.3d 14, 26 (Tex. App.—Tyler 2006, no pet.). However, when the State’s direct evidence
shows the intent element of the crime and that evidence is uncontradicted by the defendant and not
undermined by cross-examination of the State’s witnesses, evidence of extraneous offenses to show
intent is inadmissible. Rankin, 974 S.W.2d at 719; DeLeon, 77 S.W.3d at 312.
The contested issue in this case was whether appellant had sexual intercourse with
C.E. at all. C.E. testified to specific acts perpetrated by appellant that resulted in sexual intercourse.
The jury could infer the required guilty intent from the act of sexual intercourse itself. See Boutwell
53
v. State, 719 S.W.2d 164, 180 (Tex. Crim. App. 1985) (intent not contested issue in sexual abuse
case where act itself is indicative of such); Bjorgaard, 220 S.W.3d at 560 (“Simply put, the acts
speak for themselves and provide [a] basis (if believed) for one to reasonably infer that appellant
consciously sought to fondle [the victim’s] sex organ.”). Appellant neither contradicted the State’s
evidence nor undermined the intent element through cross-examination. He never advanced a theory
suggesting the lack of intent; that is, he never suggested that he engaged in the conduct without the
requisite intent. Appellant did not claim at trial, nor did the evidence suggest, that he accidentally
committed this act. Rather, he denied engaging in the conduct altogether. Therefore, the inclusion
of the extraneous conduct was not necessary to disprove an otherwise innocent intent. See Clark
v. State, 726 S.W.2d 120, 124 (Tex. Crim. App. 1986) (appellant’s actions in signing her own name
to 22 checks made out to her employer and depositing them into her bank account showed requisite
intent for theft of property and no evidence was introduced to offer any other alternative; thus,
extraneous offenses were “not necessary to shore up the State’s case or disprove an otherwise
innocent intent”); Lopez v. State, 288 S.W.3d 148, 165 (Tex. App.—Corpus Christi 2009, pet. ref’d)
(defendant did not claim that he accidentally committed sexual acts of penetrating victim’s anus and
causing victim’s penis to contact his mouth; therefore, extraneous acts not necessary to disprove
otherwise innocent intent). Furthermore, even if appellant had made his intent an issue at trial (e.g.,
by admitting to the alleged sexual intercourse while claiming the conduct was somehow accidental
or unintentional), we fail to see how the particular extraneous conduct admitted here would be
relevant in negating such a defense. We are unable to discern how the evidence of touching J.A. a
decade earlier shows his intent to have sexual intercourse with C.E.
54
Moreover, the evidence of extraneous conduct lacked the requisite similarity to the
charged offense. When evidence of an extraneous offense is offered to show intent, the relevance
of the extraneous offense derives from the “doctrine of chances”—the instinctive recognition of that
logical process which eliminates the element of innocent intent when similar instances ending in the
same result recur. Casey, 215 S.W.3d at 881 (citing Plante v. State, 692 S.W.2d 487, 491–92 (Tex.
Crim. App. 1985)); Brown, 96 S.W.3d at 513; see De La Paz, 279 S.W.3d at 347 (“The ‘doctrine
of chances’ tells us that highly unusual events are unlikely to repeat themselves inadvertently or by
happenstance.”). For the doctrine to apply, there must be a distinct similarity between the charged
and extraneous offenses, since it is the improbability of a like result being repeated by mere chance
that gives the extraneous offense probative weight. Plante, 692 S.W.2d at 492; Brown, 96 S.W.3d
at 512; see Casey, 215 S.W.3d at 881 (“[E]vidence of a remarkably similar act might be admissible
to prove . . . intent . . . under ‘the doctrine of chances.’” (Emphasis added.)). Appellant’s touching
the butt of a ten-year-old child, over her clothing, is in no way similar to penetrating the sexual organ
of a 15-year-old child with his penis.
Appellant’s intent was not at issue, nor were the acts sufficiently similar. Thus, we
conclude the extraneous-conduct evidence was not relevant to the issue of appellant’s intent to have
sexual intercourse with C.E.
Preparation or plan
The “preparation” or “plan” exception allows admission of evidence to show steps
taken by the defendant in preparation for the charged offense. Daggett v. State, 187 S.W.3d 444, 451
(Tex. Crim. App. 2005); see Boutwell, 719 S.W.2d at 181 (“Central to the common plan or scheme
exception is that there be a plan or scheme and the extraneous offenses are steps taken towards the
55
accomplishment of the plan.”). Thus, if the proponent is unable to articulate exactly how an
extraneous act tends to prove a step toward an ultimate goal or overarching plan, the evidence is not
admissible to prove part of a “plan.” Daggett, 187 S.W.3d at 452.
In the present case, the State offered J.A.’s testimony about the touching incident as
evidence of a common scheme or plan to sexually assault C.E. However, the State failed to
articulate any logical link between touching J.A.’s butt and an ultimate goal or plan to have sexual
intercourse with C.E. a decade later. Neither preparation nor plan was an issue raised in this case.
Therefore, they could not serve as a proper basis for admitting the extraneous conduct.
Rebuttal of a Defensive Theory
Rebuttal of a defensive theory is one of the “other purposes” for which extraneous-
offense evidence may be admitted under Rule 404(b). Williams, 301 S.W.3d at 687; Moses,
105 S.W.3d at 626. This includes rebutting the defensive theory that the complainant fabricated the
allegations against the defendant. Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008); see
Gaytan v. State, 331 S.W.3d 218, 224 (Tex. App.—Austin 2011, pet. ref’d). If the State can show
that a defendant has committed similar sexual assaults against unrelated and unconnected children,
a defense allegation that the complainant fabricated her claim is less likely to be true. See Bass,
270 S.W.3d at 562–63. By showing that the complainant’s allegations are less likely to be
fabricated, the extraneous-offense evidence directly rebuts the defensive claims and has
logical relevance aside from character conformity. Id.; Applewhite v. State, 08-11-00121-CR,
2012 WL 4447592, at *2 (Tex. App.—El Paso Sept. 26, 2012, pet. ref’d) (op., not designated
for publication).
56
In the present case, the State argues that the extraneous-conduct evidence was
admissible to rebut two defensive theories: fabrication and “sloppy police work.” We disagree. To
be admissible for rebuttal of a fabrication or “frame-up” defense, “the extraneous misconduct must
be at least similar to the charged one.” Wheeler, 67 S.W.3d at 887 n.22; see Richardson v. State,
328 S.W.3d 61, 71 (Tex. App.—Fort Worth 2010, pet. ref’d) (“By raising a defensive theory, a
defendant opens the door for the State to offer rebuttal testimony regarding an extraneous offense
if the extraneous offense has common characteristics with the offense for which the defendant is on
trial.”); Blackwell v. State, 193 S.W.3d 1, 13 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (“To
be probative, the extraneous-offense evidence admitted to rebut a defensive theory must be similar
to the charged offense.”); see also Dennis v. State, 178 S.W.3d 172, 179 (Tex. App.—Houston [1st
Dist.] 2005, pet. ref’d) (holding that extraneous-offense evidence admitted to rebut defensive theory
of frame-up need not be signature crime or nearly identical to charged offense; Rule 404(b) requires
only similarity to charged offense). We conclude the extraneous conduct here lacks the requisite
similarity to the charged offense to be admissible to rebut the defensive theory of fabrication.
Touching the butt over the clothing is not sufficiently similar to penile penetration of the sexual
organ that it logically serves to make it more or less probable that C.E. lied.
In addition, simply because a defensive theory is advanced does not automatically
mean extraneous-offense evidence is admissible to rebut it. The evidence of extraneous misconduct
must logically serve to make more or less probable defensive evidence that undermines an elemental
fact. See De La Paz, 279 S.W.3d at 343 (citing Martin v. State, 173 S.W.3d 463, 466 (Tex. Crim.
App. 2005)). The extraneous-conduct evidence about the touching incident does not logically serve
to make it more or less probable that law enforcement conducted an inadequate investigation in this
57
case. Thus, contrary to the State’s contention, the evidence was not admissible to rebut the “sloppy
police work” defense.
We conclude that the extraneous-conduct evidence was not admissible to rebut either
the defensive theory of fabrication or “sloppy police work.”
False Impression
At trial the prosecutor argued that the extraneous-conduct evidence was admissible
to rebut appellant’s assertion that he was “not a molester.” On appeal, the State addresses this
assertion in its argument that the extraneous-conduct evidence was admissible to rebut a defensive
theory.30 The State asserts that appellant’s extraneous conduct with J.A. was admissible because
extraneous offenses are admissible “when a false picture is presented by the defense” and notes that
defense counsel highlighted appellant’s statement that he did not molest children during his
questioning of Detective Carrasco.31
30
The State maintains in its brief that “asserting the argument ‘I’m not a molester’” was one
of the ways appellant presented a fabrication defense at trial.
31
As a general rule, the defensive theory that the State wishes to rebut through the use of
extraneous-offense evidence must be elicited on direct examination by the defense and may not by
elicited by “prompting or maneuvering” by the State. See Shipman v. State, 604 S.W.2d 182, 185
(Tex. Crim. App. 1980); Roberts v. State, 29 S.W.3d 596, 601 (Tex. App.—Houston [1st Dist.]
2000, pet. ref’d). An exception to this general rule exists: when a defendant voluntarily or
nonresponsively testifies concerning extraneous matters on cross-examination, the State may correct
any false impression presented by such answer. See Martinez v. State, 728 S.W.2d 360, 361–62
(Tex. Crim. App. 1987); Roberts, 29 S.W.3d at 601. Accordingly, if a defendant testifies to a
blanket statement of good conduct or character, he may “open the door” by leaving a false
impression with the jury about a relevant act or character trait. Daggett v. State, 187 S.W.3d 444,
452 (Tex. Crim. App. 2005). In this case, appellant did not testify at trial. Thus, he did not testify
to a blanket statement of good conduct or character, through direct testimony or on
cross-examination. Nor did he present such a picture through a defense witness. Rather, his
statement was made during the interview with Detective Carrasco. The State offered the video of
this interview into evidence. We acknowledge that during cross-examination defense counsel
58
Evidence that is otherwise inadmissible may become admissible when a party opens
the door to such evidence. Williams, 301 S.W.3d at 687; Hayden v. State, 296 S.W.3d 549, 554
(Tex. Crim. App. 2009). A party opens the door by leaving a false impression with the jury that
invites the other side to respond. Hayden, 296 S.W.3d at 554; Daggett v. State, 187 S.W.3d 444,
452 (Tex. Crim. App. 2005). Under this exception, “when a witness’s blanket assertion of
exemplary conduct is directly relevant to the offense charged, the opponent may both
cross-examine the witness and offer extrinsic evidence rebutting the statement.” Winegarner
v. State, 235 S.W.3d 787, 790–91 (Tex. Crim. App. 2007) (quoting Daggett, 187 S.W.3d at 453 n.24
(internal quotation marks omitted)). More particularly, when a defense witness presents a picture
that the defendant is not the type of person to commit the charged offense, the prosecution may
impeach that witness’s testimony by introduction of similar extraneous offenses. Wheeler,
67 S.W.3d at 885 (citing McIlveen v. State, 559 S.W.2d 815, 822 (Tex. Crim. App. 1977)); Roberts
v. State, 29 S.W.3d 596, 601 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d); see, e.g., Garcia v.
State, 308 S.W.3d 62, 67–68 (Tex. App.—San Antonio 2009, no pet.) (by eliciting testimony from
defendant on direct examination broadly disclaiming that he had ever sexually assaulted someone,
questioned the detective about appellant’s “I’m not a molester” assertion when he asked about
appellant’s denial of the instant offense during the interview, apparently attempting to show that
more happened in the interview than was elicited by the State during direct examination. However,
we are troubled by the notion that appellant created a false impression at trial by making this
statement during the investigation before he was charged with this offense, such that it entitled the
State to offer extraneous-offense evidence to correct the impression or rebut the assertion when the
State itself offered the video into evidence. However, we address the “false impression” exception
because the State alludes to it in its brief, and we will uphold the trial court’s evidentiary ruling if
it is correct on any theory of law applicable. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim.
App. 2009).
59
defense counsel opened door for State to cross-examine defendant and to present rebuttal evidence
of extraneous offense of same character as charged aggravated sexual assault).
We are not persuaded that the false-impression exception permitted the admission of
the extraneous misconduct in this case. The charged conduct in this case was penile penetration of
the sexual organ. The extraneous conduct was touching the butt over clothing. The assertion of
good conduct was “I’m not a molester.” The extraneous conduct is not similar to the charged
offense, nor does it rebut appellant’s assertion that he is not a molester. The incident of touching
J.A.’s butt, while perhaps inappropriate, does not demonstrate that appellant is a “molester.” This
conclusion is supported by the State’s description of the evidence at trial and J.A.’s testimony.
The prosecutor initially said that the evidence of extraneous conduct was that
appellant “tried to molest [J.A.]” and “tried to touch her inappropriately.” When the court sought
clarification, the prosecutor conceded that “this defendant never actually committed an offense
against them. He did things to them that made them feel uncomfortable that they felt was leading
up to something inappropriate.”32 Most importantly, the prosecutor admitted that “we’re not
claiming that he actually molested these children. They’re going to come in and tell this jury why
they knew he was a creep and why they knew to watch out for him.” In her testimony, J.A. testified
consistently with this latter description. She opined that appellant was a pervert because of instances
where he “tried something” that made her “feel uncomfortable.” She described the look on
appellant’s face when he pulled her toward him as “a smile and I didn’t like it” and expressed that
she was young and felt frightened.
32
There is some indication in the record that the extraneous conduct may have involved
“some inappropriate contact” with another child in addition to J.A., but the record does not contain
any details about that alleged conduct.
60
This evidence, while demonstrating inappropriate conduct, does not rebut appellant’s
claim that he was “not a molester.” Evidence that would rebut such a claim would be evidence of
actual molestation, not conduct that made J.A. feel uncomfortable, or even frightened, but that fell
short of molestation. Therefore, we conclude that this evidence was not admissible to correct a false
impression or rebut appellant’s assertion in the interview that he was “not a molester.”
Conclusion Regarding Extraneous Conduct
To be admissible, extraneous misconduct must be relevant for reasons other
than suggesting that the appellant acted in conformance with his character. See Alba v. State,
905 S.W.2d 581, 585 (Tex. Crim. App. 1995). The incident of appellant’s touching J.A.’s butt over
her clothing logically served none of the non-character-conformity purposes adduced by the State
and amounts to nothing more than propensity evidence. Consequently, having no relevance beyond
character conformity, the extraneous misconduct was inadmissible under Rule 404(b).
Harm Analysis
Having concluded that the trial court erred, we must now determine if the error was
harmful and therefore is reversible. The erroneous admission of extraneous-offense evidence is
non-constitutional error. See Martin v. State, 176 S.W.3d 887, 897 (Tex. App.—Fort Worth 2005,
no pet.); Johnson v. State, 84 S.W.3d 726, 729 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d);
see also Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005). Thus, we conduct our
harm analysis under the framework for reviewing non-constitutional error previously set forth in this
opinion. See supra pp. 32–33.
61
Regarding the quantum of evidence demonstrating appellant’s guilt, enough was there
to support conviction.33 But since there were no witnesses to the incident save for C.E. and
appellant, we cannot say that the evidence of appellant’s guilt was overwhelming. Next, the error
involved the introduction of evidence that was inherently inflammatory. Evidence showing the
commission of extraneous misconduct is usually excluded because such evidence is inherently
prejudicial, tends to confuse the issues of a case, and forces the accused to defend himself against
charges which he had not been notified would be brought against him. See Sims v. State,
273 S.W.3d 291, 294–95 (Tex. Crim. App. 2008); Abnor v. State, 871 S.W.2d 726, 738 (Tex. Crim.
App. 1994). “By its very nature, an improperly admitted extraneous offense tends to be harmful.
It encourages a jury to base its decisions on character conformity, rather than evidence that the
defendant committed the offense with which he or she has been charged.” Jackson v. State,
320 S.W.3d 873, 889 (Tex. App.—Texarkana 2010, pet. ref’d). Moreover, “[b]oth sexually related
misconduct and misconduct involving children are inherently inflammatory.” Montgomery,
810 S.W.2d at 397; see Bjorgaard, 220 S.W.3d at 562; DeLeon, 77 S.W.3d at 316.
In considering how the erroneously admitted evidence might be considered in
connection with other evidence in the case, we observe that the evidence of appellant’s extraneous
misconduct was introduced to support J.A.’s opinion that appellant was a sexual predator.34 The
33
Again, because C.E. was under 17 years of age at the time of this offense, her testimony
alone is sufficient to support appellant’s conviction for this sexual assault. See Tex. Code Crim.
Proc. art. 38.07(a), (b)(1); Perez, 113 S.W.3d at 838.
34
The prosecutor introduced questions concerning appellant’s extraneous misconduct with
the following exchange:
Q. Now, you have the opinion that [appellant] was someone who could
potentially hurt children in a sexual way, right?
62
State began the presentation of its case-in-chief with the following remarks by the prosecutor in her
opening statement:
He is the [E.] family’s big, ugly secret. All the children in the family knew to watch
out for him. All the children in the family knew he was a pervert, and yet the adults
did nothing about it.
This theme characterizing appellant as a pervert or sexual predator was presented throughout trial
and was emphasized through several witnesses.35 In addition, appellant’s extraneous conduct was
referenced elsewhere in the guilt-innocence phase of the trial.36 Further, the State mentioned the
A. Yes.
Q. And did you have that opinion because of something he had tried with you?
A. Yes.
Q. Okay. Were there several instances that made you feel uncomfortable with
this defendant?
A. At least three.
Q. At least three. Now, I actually want to start with the last one.
35
For example, the State asked the investigating detective, “Were you aware, when you were
conducting your investigation, as well, that [appellant] was -- he was somebody that the kids in the
family knew to watch out for?” The prosecutor also asked B.E., C.E.’s cousin, “Is it fair to say that
all the kids in the family knew to watch out for [appellant]?”
36
When the prosecutor asked B.E. why she did not like appellant, B.E. explained, “Because
knowing what he had done with . . . my older cousin, [J.A.] . . . .” In addition, the prosecutor asked
Rosie, C.E.’s mother, “So was there any indication from any of your other daughters that he was
someone who was interested in children, sexually?” and established in the follow-up question that
the daughter was J.A. Also, the extraneous conduct was referenced in Rosie’s written statement and
the video recording of the detective’s interview of appellant, both of which were offered into
evidence by the State.
63
extraneous conduct in closing argument.37 Thus, it cannot be said that little attention was focused
on the extraneous misconduct, and this enhanced the potential for the evidence to improperly
influence the jury.
Further, while the trial court instructed the jury in the jury charge to consider J.A.’s
testimony only for a limited purpose, this limiting instruction did not serve to mitigate harm. If the
jury did heed the trial court’s admonition, the admonition itself permitted consideration of the
evidence for an improper purpose. As we noted previously, an instruction that instructs a jury to
consider inadmissible evidence for a limited purpose still instructs a jury to consider inadmissible
evidence. See discussion supra p. 34. The extraneous conduct should not have been considered for
any purpose.
In this case, the State sought to establish that appellant was a “pervert” who was
sexually interested in children. The purpose in doing so was to show that he is the type of person
who engages in sexual misconduct with children and, therefore, that he perpetrated the instant sexual
assault against C.E. This is precisely the improper inference that Rule 404(b) prohibits. Invoking
the concept of character conformity cannot legally be done. Because the State did so here, we cannot
discount the likelihood that appellant’s extraneous conduct with J.A. substantially influenced his
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When discussing Rosie’s written statement, the prosecutor said:
. . . [L]ook about mid-page: “I asked her if she knew or heard anything about
him trying to touch my nieces and my other daughter at any time.”
“She said she had not heard anything.”
Well, if you remember from the chart -- and we’re talking about trying to
touch my nieces and my other daughter. “My other daughter.” So, again, [defense
counsel] may be confused, you don’t need to be.
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conviction. Thus, appellant was harmed by its admission. We sustain appellant’s eighth point
of error.
Sexual Interest in Children
In his ninth point of error, appellant asserts that the trial court erred in admitting
testimony of C.E.’s mother, Rosie, concerning his sexual interest in children because it constituted
inadmissible character-conformity evidence.
As noted previously, preservation of error is a systemic requirement on appeal. Ford,
305 S.W.3d at 532. A reviewing court should not address the merits of an issue that has not been
preserved for appeal. Wilson, 311 S.W.3d at 473–74. To preserve an issue for appellate review, a
party must timely object, stating the specific legal basis for the objection. Tex. R. App. P. 33.1(a)(1).
An objection is timely if made at the earliest opportunity or as soon as the grounds for the objection
become apparent. Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011); Gillemvaters
v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006). If a defendant fails to object until after an
objectionable question has been asked and answered, and he can show no legitimate reason to
justify the delay, his objection is untimely, and any claim of error is forfeited. Luna v. State,
268 S.W.3d 594, 604 (Tex. Crim. App. 2008); see Saldano v. State, 70 S.W .3d 873, 889 (Tex. Crim.
App. 2002) (“[T]he failure to object in a timely and specific manner during trial forfeits complaints
about the admissibility of evidence.”).
In this case, the prosecutor elicited testimony from C.E.’s mother that she had learned
from her older daughter that appellant was sexually interested in children:
Q. So was there any indication from any of your other daughters that he was
someone who was interested in children, sexually?
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A. Yes.
Q. And which daughter is that?
A. [J.A.].
Only at that point did appellant object. However, the grounds for objection were apparent when the
prosecutor asked the improper question about Rosie’s knowledge of appellant’s sexual interest in
children. Appellant’s objection to the complained-of evidence was untimely because it was made
after not only the objectionable question was asked and answered but after the follow-up question
was asked and answered as well. Because appellant failed to timely object to the complained-of
testimony, he failed to preserve error relating to its erroneous admission. Accordingly, we overrule
his ninth point of error.
CONCLUSION
Reversible error is present throughout the record of this case. The erroneous removal
of Juror Brooks from the jury affected a substantial right of appellant’s and is reversible error. The
erroneous admission of multiple hearsay statements affected a substantial right of appellant’s and
is reversible error. And the erroneous admission of the extraneous-conduct evidence affected a
substantial right of appellant’s and is reversible error.
Moreover, even if these errors were not harmful in and of themselves, which we
conclude they were, the combined effect of all the errors in this case (including the opinion testimony
of Detective Carrasco) harmed appellant. See Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim.
App. 2009) (“[I]t is possible for a number of errors to cumulatively rise to the point where they
become harmful[.]”); see also Stahl v. State, 749 S.W.2d 826, 832 (Tex. Crim. App. 1988).
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Accordingly, we reverse appellant’s judgment of conviction and remand the cause
to the trial court for a new trial.
__________________________________________
J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Rose and Goodwin*
*Justice Goodwin joins Part I of the opinion only and concurs in the judgment.
Reversed and Remanded
Filed: September 13, 2013
Publish
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