Roland Blake Fears v. State

NUMBER

13-13-00111-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

RONALD BLAKE FEARS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 138th District Court
of Cameron County, Texas.

OPINION

Before Justices Rodriguez, Garza, and Longoria
Opinion by Justice Longoria

By fifteen issues, which we have reordered, appellant Ronald Blake Fears

challenges his convictions for sexual abuse of a child (Count I), sexual assault of a child
(Count III),1 and indecency with a child by contact (Counts IV–VI). See TEX. PENAL CODE

ANN. §§ 21.02, 22.011(a)(2), 21.11(a)(1) (West, Westlaw through 2013 3d C.S.). We

affirm.

I. BACKGROUND

A. Initial Statements

During the weekend of October 2, 2011, C.T.,2 the minor complainant in this case,

was sleeping over at the home of her friend Chesney St. John (Chesney) and helping to

babysit Chesney’s younger siblings. At the time, Chesney was sixteen years old and C.T.

was fourteen years old.3 C.T. confided to Chesney that C.T. needed help telling

something to C.T.’s mother, which C.T. evidently found difficult to discuss. Chesney

testified that C.T. typed a message into the text message function of her phone, showed

Chesney what she wished to tell her mother, and then erased it. According to Chesney,

the message revealed that C.T. was being sexually abused by appellant, her stepfather.

Chesney further testified that she learned that the abuse began when C.T. was eight

years old. Chesney called her parents, who returned to the house. Chesney first

repeated some of C.T.’s statements to Chesney’s parents because C.T. was crying too

much to speak.

Chesney’s mother, Natalie, questioned C.T. after Chesney finished speaking and

testified to C.T.’s responses at trial.4 Natalie testified that C.T. stated that appellant forced

1 The State abandoned Count II, aggravated sexual assault of a child, after the close of its case.
2C.T. testified under this pseudonym in the trial court. We will continue to refer to her by it in an
effort to protect her privacy.

3 Chesney was eighteen years old at the time of the trial.
4The trial court certified Natalie as the outcry witness under article 38.072 because she was the
first person older than eighteen years to whom C.T. made a statement about the abuse. See TEX. CODE

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her to perform oral sex on him and appellant performed oral sex on C.T. The most recent

abuse occurred one week earlier. C.T. told her that the abuse occurred in her parents’

bedroom on multiple occasions, and on one occasion, appellant attempted to vaginally

penetrate her as she lay naked on the bed but stopped after she curled into a fetal position

and began to cry. Natalie called the San Benito Police Department; she and Chesney

accompanied C.T. to the police station and waited while C.T. gave a statement to Officer

Carlos Andrade.

B. C.T.’s Statement to Officer Andrade

Officer Andrade testified that he learned from his interview with C.T. that appellant

“was only touching [C.T.’s] private areas” and that he had not penetrated her with his

fingers or forced her to perform oral sex. However, Officer Andrade further testified that

he did not determine before conducting the interview whether C.T. understood the terms

“penetration” and “oral sex.” Chesney testified that C.T. did not know the meaning of the

term “oral sex” until she and C.T. spoke after C.T. gave a statement to Andrade. Chesney

testified that after explaining the term, she believed that appellant had forced C.T. to

perform oral sex. Andrade also testified that C.T. confirmed that the abuse began when

she was eight years old. Andrade testified that he felt that there was enough evidence to

determine that a crime had been committed and contacted Child Protective Services

(CPS).

C. Interview with Francisco Lopez

CPS Investigator Francisco Lopez testified on direct examination that he was

assigned to the case after CPS received reports from Chesney and Natalie and the San

CRIM. PROC. ANN. art. 38.072, § 2(a)(3) (West, Westlaw through 2013 3d C.S.).

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Benito Police. On Sunday, October 3, 2011 (the day after C.T. first spoke to Chesney),

Lopez and another CPS investigator went to Chesney and Natalie’s home to interview

C.T. Lopez testified that they would normally bring a child complainant for a forensic

interview at Maggie’s House, the Children’s Advocacy Center, but it was closed that day.

Lopez personally interviewed C.T. and made an audio recording of the interview, which

we will refer to as the “Lopez Recording.”

During the interview, C.T. confirmed that the abuse started when she was eight

years old, that she had recently learned the meaning of the term “oral sex” from Chesney,

that appellant had forced her to perform oral sex, and that appellant had performed oral

sex on her. C.T. clarified to Lopez that she told Officer Andrade that he did not force her

to perform oral sex because she did not know the meaning of the term until she spoke to

Chesney after giving the statement. C.T. also described the specific appearance of

appellant’s genitalia, including whether his pubic hair was shaved or unshaved, that he

had pimples on his thighs, and that she sometimes saw “red dots” on his genital area.

Lopez questioned C.T.’s mother when she arrived to pick up C.T. and testified that C.T.’s

mother gave a similar description of appellant’s genitalia.

Immediately prior to Lopez’s testimony, appellant’s counsel orally moved for a

continuance to review any documents prepared by Lopez during his investigation

because the documents “could be pretty voluminous.” The trial court overruled the motion

as premature. At the beginning of cross-examination by appellant’s counsel, Lopez

confirmed that he had prepared an eight-page report of his investigation, that he used a

copy of the report to refresh his memory prior to testifying, and that he had not provided

the report to the State, the trial court, or appellant because it was confidential by law. See

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TEX. FAM. CODE ANN. § 261.201 (West, Westlaw through 2013 3d C.S.). Appellant’s

counsel moved under Texas Rule of Evidence 615 that the court order Lopez to turn over

the report and orally moved for a continuance to give him time to review the report before

using it to cross-examine Lopez. See TEX. R. EVID. 615. The trial judge denied both

motions. At the end of Lopez’s testimony, appellant’s counsel again requested the report.

Appellant’s counsel also filed a written motion for continuance and a motion for disclosure

of confidential records. The trial judge never explicitly ruled on the motions but carried

them through the trial. The trial judge also ordered the State to tender the CPS files

generated in the case to the court under seal. After reviewing the records in camera, the

trial judge disclosed a copy of Lopez’s eight-page report to the defense and read two

additional pages into the record.

D. Lopez’s Interview with B.F.

Lopez briefly interviewed B.F., C.T.’s younger sister, on the same day as his

original interview with C.T. Lopez also made an audio recording of that interview. At trial,

the State called B.F. as a witness. During the State’s direct examination, B.F. denied that

she had ever told Lopez that appellant and C.T. were alone “many times” in her parents’

room with the door closed. The State offered into evidence a portion of the audio

recording of Lopez’s interview with B.F. that was inconsistent with this testimony. See

TEX. R. EVID. 613. The trial court judge admitted that portion of the statement into

evidence over appellant’s objections. At the end of the State’s examination, B.F. admitted

that her mother had told her what to say during her trial testimony.

E. C.T.’s Interview at Maggie’s House

The day after the initial interviews, Lopez took C.T. for a forensic interview at

5
Maggie’s House. Lopez described C.T.’s interview, which we discuss in detail below, as

containing more details, but consistent with C.T.’s prior statements. Following the

interview, Detective Manuel Cisneros decided to file charges against appellant.

F. C.T.’s Testimony

C.T. testified on direct examination that the first incident of abuse occurred when

she was eight years old and appellant touched the surface of her vagina with his fingers.

She remembered at least one other incident of appellant doing similar acts around the

same time period. C.T. testified that the abuse escalated in “stages.” On subsequent

occasions, appellant would “play with my nipples or my boobs. He’d suck on them or he’d

put his mouth to my vagina.” C.T. further testified that appellant also forced her to perform

oral sex on him more than ten times. She testified that appellant actually tried to insert

his penis into her vagina on two occasions, in contrast to the single incident that she

described to Natalie, Chesney, Officer Andrade, Lopez, and the interviewer at Maggie’s

House. C.T. explained that at the time of her initial outcry, her “nerves were running very

thin, and like, I was not thinking fully.”

C.T. mentioned during direct examination that she gave a statement to Lopez prior

to the interview at Maggie’s House. At the end of the State’s direct examination, appellant

objected and requested that the court disclose any statements C.T. gave to CPS. After

an in camera review of the sealed CPS files, the trial judge disclosed the existence of two

audio files of C.T.’s interview with Lopez to all parties. The trial judge denied appellant’s

motion for continuance but gave appellant’s counsel time to listen to the recordings before

proceeding with the trial.5 The State moved on redirect to introduce a portion of the video

5 The audio files run approximately twenty-five minutes in total.

6
recording of C.T.’s interview at Maggie’s House. The State argued that it was admissible

to counteract a false impression of C.T.’s tendency to lie that was left in the jurors’ minds

by counsel’s cross-examination. See TEX. R. EVID. 801(e)(1)(c). The trial court admitted

that portion of the video over appellant’s objections.

G. Verdict and Sentence

Following the close of evidence, the jury returned verdicts of guilty on all pending

counts. Appellant opted for the trial judge to assess his punishment. The trial judge

assessed concurrent sentences of fifty years’ imprisonment on Count I and twenty years’

imprisonment on each of the remaining counts. Appellant filed a motion for new trial, and

the trial court denied it by written order. Appellant timely filed a notice of appeal.

II. MOTIONS FOR CONTINUANCE

By his first issue, appellant argues that the trial court erred by denying his three

motions for continuance: first, immediately prior to Lopez’s testimony; second, at the

beginning of his counsel’s cross-examination of Lopez; and third, at the end of his cross-

examination of Lopez. We disagree.

A. Standard of Review and Applicable Law

We review the trial court’s ruling on a motion for continuance for abuse of

discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). Requests for a

continuance after the trial has begun are expressly governed by the code of criminal

procedure, which provides:

A continuance or postponement may be granted on the motion of the State
or defendant after the trial has begun, when it is made to appear to the
satisfaction of the court that by some unexpected occurrence since the trial
began, which no reasonable diligence could have anticipated, the applicant
is so taken by surprise that a fair trial cannot be had.

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TEX. CODE CRIM. PROC. ANN. art. 29.13 (West, Westlaw through 2013 3d C.S.). The

motion must be in writing and fully state sufficient cause for the continuance. Id. art. 29.03

(West, Westlaw through 2013 3d C.S.). The motion must also be sworn to “by a person

having personal knowledge of the facts relied on for the continuance.” Id. art. 29.08

(West, Westlaw through 2013 3d C.S.); see Williams v. State, 356 S.W.3d 508, 521 (Tex.

App.—Texarkana 2011, pet. ref'd). A motion for continuance that is not in writing and not

sworn preserves nothing for review. Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim.

App. 1999).

B. Discussion

Appellant’s first and third motions were unwritten and unsworn and so did not

preserve error for our review. See id. Appellant’s second motion, although in writing and

sworn to by counsel, was insufficient to demonstrate that a continuance was warranted.

A motion for continuance must cite an unexpected occurrence that the applicant’s counsel

could not have anticipated by reasonable diligence and show that the “applicant is so

taken by surprise that a fair trial cannot be had.” TEX. CODE CRIM. PROC. ANN. art. 29.13.

Appellant’s motion cited the reason for the request, to review the CPS records, but did

not attempt to show that the existence of the audio recording could not have been

anticipated by reasonable diligence. The motion also does not explain why a fair trial

could not be had without the continuance. See id; Barney v. State, 698 S.W.2d 114, 127

(Tex. Crim. App. 1985) (en banc) (holding that, under article 29.13, “it must appear to the

satisfaction of the court that ‘a fair trial cannot be had’ before a continuance or

postponement is warranted”). Consequently, the trial court did not abuse its discretion in

denying the continuance. See Gallo, 239 S.W.3d at 764. We overrule appellant’s first

8
issue.

III. OBJECTION UNDER TEXAS RULE OF EVIDENCE 615

By his second issue, appellant argues that the trial court erred when it refused his

motion under Texas Rule of Evidence 615 to direct the State to produce a copy of Lopez’s

report to assist appellant’s counsel in cross-examination. We disagree.

A. Applicable Law and Standard of Review

The common-law Gaskin rule provided that, when a State’s witness made a report

or gave a statement prior to testifying, the defendant is entitled on timely request to

inspect the report or statement and to use it for purposes of cross-examination and

impeachment. Cullen v. State, 719 S.W.2d 195, 196 (Tex. Crim. App. 1986) (en banc)

(citing Gaskin v. State, 172 TEX. CRIM. 7, 353 S.W.2d 467 (1961)). This rule is now

codified in Texas Rule of Evidence 615, which provides:

After a witness other than the defendant has testified on direct examination,
the court, on motion of a party who did not call the witness, shall order the
attorney for the state or the defendant and defendant's attorney, as the case
may be, to produce, for the examination and use of the moving party, any
statement of the witness that is in their possession and that relates to the
subject matter concerning which the witness has testified.

TEX. R. EVID. 615. The rule defines a “statement” as “a written statement made by the

witness that is signed or otherwise adopted or approved by the witness.” Id. R. 615(f)(1).

If the defendant timely moves for production of material covered by Texas Rule of

Evidence 615, it is error for the trial court to deny production and access to it. Keith v.

State, 916 S.W.2d 602, 606 (Tex. App.—Amarillo 1996, no pet.).

Section 261.201 of the Texas Family Code provides that “reports,” among other

materials, “used or developed” in an investigation of a report of child abuse or neglect

made under chapter 261 are confidential and may not be released. TEX. FAM. CODE ANN.

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§ 261.201(a). A court may order the release of information made confidential under

section 261.201 if the following conditions are met: (1) a motion is filed requesting the

release of the information; (2) notice of hearing has been served on the investigating

agency and all interested parties; and (3) the court determines after the hearing and an

in camera review of the requested information that disclosure of the requested information

is essential to the administration of justice and is not likely to threaten the life or safety of

(i) a child complainant, (ii) a person who made a report of alleged abuse, or (iii) any person

who participated in an investigation of abuse or neglect or who provided care for the child.

Id. § 261.201(b).

B. Discussion

Appellant asserts that the trial court erred by refusing to order production of

Lopez’s report at the beginning of his trial counsel’s cross-examination of Lopez as

expressly required by the rule. See TEX. R. EVID. 615. The State responds that the trial

court did not err by denying the motion because Lopez’s report was protected under

section 261.201 of the Texas Family Code, and appellant did not follow the proper

procedure for gaining access to information protected by that section. See id.; see also

TEX. FAM. CODE ANN. § 261.201. We agree with the State.

Appellant’s counsel moved for disclosure of the report under Texas Rule of

Evidence 615, but he did not mention Texas Family Code section 261.201 or attempt to

comply with the procedure for releasing information classified as confidential under that

section. Because appellant did not attempt to comply at that time with the procedures for

releasing it,6 we hold the trial court did not err in overruling appellant’s objection under

6 Appellant’s counsel later filed a Motion for Disclosure of Confidential Records seeking access to
the entire CPS casefile, which we discuss below. However, appellant does not mention that motion under

10
Texas Rule of Evidence 615. See TEX. R. EVID. 615. We overrule appellant’s second

issue.

IV. BRADY VIOLATIONS

Appellant asserts in his third issue that the State violated its duty to disclose

favorable and material information to appellant. See Brady v. Maryland, 373 U.S. 83, 87

(1963). We disagree.

A. Applicable Law

Under United States Supreme Court precedent beginning with Brady, the State is

required to disclose evidence known to it that is favorable or material to a defendant’s

guilt or punishment, whether or not the defendant requests it. Strickler v. Greene, 527

U.S. 263, 280 (1999). This duty encompasses both impeachment as well as exculpatory

evidence. Id. (citing United States v. Bagley, 473 U.S. 667, 676 (1985)). The good or

bad faith of the prosecution is irrelevant. Brady, 373 U.S. at 87.

A defendant must show the following requirements to establish a Brady violation:

(1) the State suppressed evidence; (2) the suppressed evidence is favorable to the

defendant; and (3) the suppressed evidence is material. Stickler, 527 U.S. at 281–82;

accord Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006). “Favorable” evidence

for these purposes is any evidence that, if disclosed and used effectively, “may make the

difference between conviction and acquittal.” Harm, 183 S.W.3d at 406. Evidence is

“material” for Brady purposes “only if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been

different.” Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008) (internal

this issue.

11
quotations omitted). A reasonable probability is one that is sufficient to undermine

confidence in the outcome. Id.

The materiality prong incorporates a requirement that the defendant is prejudiced

by the State’s failure to disclose the evidence. Harm, 183 S.W.3d at 406. When

information is disclosed mid-trial, the prejudice inquiry involves determining whether the

disclosure came in time to make effective use of it at trial. Little v. State, 991 S.W.2d 864,

866 (Tex. Crim. App. 1999). “If the defendant received the material in time to use it

effectively at trial, his conviction should not be reversed just because it was not disclosed

as early as it might have and should have been.” Id.

B. Discussion

Appellant asserts that the State’s failure to disclose Lopez’s report and the Lopez

Recording meets the second prong of the test because “C.T. had given numerous

statements and her credibility was important at the early stage of the trial.” Appellant

reasons that Lopez’s report and the Lopez Recording show a “definite distinction”

between the content of C.T.’s original outcry statements and her statements during the

interview at Maggie’s House. Appellant argues that he should have had access to the

statements “to sufficiently develop cross-examination of C.T.”7

We first address the second prong, the requirement that the suppressed evidence

was favorable. See Harm, 183 S.W.3d at 406. Lopez’s report and the recordings of the

Lopez interview do reveal some inconsistencies between C.T.’s original statements to

7 Appellant also argues that the late disclosure of the audio recording of B.F.’s interview with Lopez

was Brady error. We hold that appellant has waived error, if any, by failing to request a continuance when
the State moved to introduce the recording. See Perez v. State, 414 S.W.3d 784, 790 (Tex. App.—Houston
[1st Dist.] 2013, no pet.) (holding that failure to request a continuance waives Brady error); Young v. State,
183 S.W.3d 699, 706 (Tex. App.—Tyler 2005, pet. ref'd) (same).

12
Natalie and Chesney, Office Andrade, Lopez, and her statement at Maggie’s House. For

example, on the Lopez Recording, C.T. describes an end date for the abuse closer to the

date of her outcry than the end date in her statement to the interviewer at Maggie’s House.

C.T. also told the Maggie’s House interviewer that appellant forced her to perform oral

sex on him more than five times, but did not give a specific number of times to Chesney

or Natalie. C.T. also told the Maggie’s House interviewer that appellant attempted to

vaginally penetrate her twice, while she told Lopez that it occurred only once. However,

the majority of C.T.’s statements on the Lopez Recording are consistent with C.T.’s other

statements; she consistently described the type of acts appellant would force her to

perform and the type of acts appellant would perform on her. C.T.’s statements are also

consistent as to the abuse escalating in stages from vaginal touching, to forcing C.T. to

perform oral sex and receiving oral sex from appellant, to one or more incidents where

appellant allegedly tried to penetrate her vaginally with his penis. Moreover, during the

Lopez Recording, C.T. explained some of the discrepancies: she told Officer Andrade

that appellant did not force her to perform oral sex because she did not know the meaning

of the term at the time of the interview. Appellant also asserts that C.T.’s description in

the Lopez Recording of the identifying features of appellant’s genital area “became an

issue relating to [C.T.’s] credibility,” but Lopez testified that the description of appellant’s

genital area given by C.T.’s mother was similar to C.T.’s statement. The Lopez Recording

and Lopez’s report, if anything, do more to demonstrate the consistency of C.T.’s

statements than to cast doubt on them.

Based on the foregoing, we conclude that the evidence was not favorable to

appellant. Even assuming, arguendo, that the second prong is met, we conclude that the

13
evidence is not material because there is not a reasonable probability that the result of

the trial would have been different if the evidence had been disclosed earlier. See Ex

parte Reed, 271 S.W.3d at 727. When Brady evidence is disclosed during the trial, we

inquire whether the defendant was able to effectively use the material despite the delay.

See Little, 991 S.W.2d at 866. Appellant argues that “it is unclear” how his counsel was

supposed to use Lopez’s report, given that it was only provided at the conclusion of

Lopez’s testimony. In fact, after the end of his cross-examination and before recessing

for the day, the judge asked for Lopez’s phone number and informed him that he was not

released from his subpoena and subject to recall the next day. The trial court expressly

afforded appellant’s counsel an opportunity to continue cross-examination of Lopez the

next day on the basis of the report. If appellant’s counsel wanted to use the report to

effectively cross-examine Lopez, he had the opportunity to do so. Appellant does not

explain why he did not take the opportunity to recall and cross-examine Lopez the next

morning, or why he needed to use the information earlier in the cross-examination for it

to be effective.

Appellant also argues that the audio recordings of C.T.’s interview with Lopez were

material. When denying appellant’s third request for a continuance, this time on the basis

of a need to review the recordings, the trial judge stated on the record that there was no

substantive detail in the Lopez Recording that was not included in Lopez’s report, which

had been disclosed earlier in the trial.8 After reviewing both pieces of evidence, we agree

with the trial judge. The substance of the report is the same as the substance of the

Lopez Recording. Moreover, despite the delayed disclosure, appellant’s counsel’s cross-

8 Two witnesses testified between the disclosure of the report and the beginning of the State’s
direct examination of C.T.

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examination of C.T. fills over seventy pages of the reporter’s record and dwells almost

entirely on inconsistencies in C.T.’s multiple statements. Appellant does not explain how

a continuance would have enabled his counsel to more effectively use the recordings in

his cross-examination of C.T.

In sum, we conclude that appellant is unable to demonstrate that he was

prejudiced by the late disclosure of Lopez’s report and the Lopez Recording. Appellant

is thus unable to demonstrate the third prong of a Brady claim. See Little, 991 S.W.2d at

866. We overrule appellant’s third issue.

V. BRADY AND SECTION 261.201

By his fourth issue, appellant questions the relationship between the State’s duty

to disclose all favorable and material information under Brady and the confidentiality

requirements of Texas Family Code section 261.201. We understand appellant as

asserting two arguments under this issue. Appellant’s first argument is that:

The balancing test as to whether CPS documents should be turned over to
the Appellant should not have been placed on the trial court or this Court of
Appeals. The State of Texas should play from a point of strength and
provide every defendant with the information they intend to use to convict
them. The State hid behind the premise that CPS records are privileged
information.

Appellant’s second argument is that the trial court abused its discretion by not timely

disclosing the evidence that was the subject of his third issue.

We reject appellant’s argument that it was inappropriate for the trial court to

conduct the Texas Family Code section 261.201(b)(3) balancing test to determine

whether to disclose material that appellant viewed as Brady evidence. The conflict that

can arise between the State’s need to keep information related to child abuse

investigations confidential with a defendant’s need for a fair trial is well recognized. The

15
United States Supreme Court confronted the problem in Pennsylvania v. Ritchie, where

the Supreme Court of Pennsylvania held that the appropriate method of assessing a claim

that information made confidential by statute is material under Brady “was to grant [the

defendant] full access to the disputed information, regardless of the State’s interest in

confidentiality.” 480 U.S. 39, 59 (1987). The United States Supreme Court rejected that

conclusion, holding that the defendant’s interest in “ensuring a fair trial can be protected

fully by requiring that the [state child protection agency] files be submitted only to the trial

court for in camera review.” Id. at 60. Addressing a similar Texas statute, which made

information given to Crime Stoppers confidential, the Texas Court of Criminal Appeals

held that the defendant had the right to require the requested information be tendered to

the trial court for an in camera review, but rejected the argument that the defendant should

be accorded unlimited access to that information. Thomas v. State, 837 S.W.2d 106,

113–14 (Tex. Crim. App. 1992) (en banc). The Thomas Court held that “both the State's

interest and the defendant's interest can be served by providing that crime stoppers

information should be inspected by the trial court in camera.” Id. at 114.

Texas Family Code section 261.201 provides for exactly the type of procedure

approved in Ritchie and Thomas: an in camera inspection of the material by the trial

judge, and an ongoing duty to disclose any confidential material that is relevant or

becomes relevant during the course of the trial. See Ritchie, 480 U.S. at 60; see also

TEX. FAM. CODE ANN. § 261.201. Appellant’s request that this Court “instruct Judges, and

particularly in Appellant’s case, that the CPS Records were essential to the administration

of justice” runs directly contrary to the balance struck by both the United States Supreme

Court and the Texas Court of Criminal Appeals. Bound by that precedent, we reject

16
appellant’s argument. See Ritchie, 480 U.S. at 60; Thomas, 837 S.W.2d at 114.

Regarding appellant’s second argument, he asserts that “[t]he trial court abused

his discretion in failing to timely turn over the audio tapes and documents to the Appellant.

The Appellant was denied the effective assistance of counsel.” The Texas Rules of

Appellate Procedure require that an appellant’s brief “contain a clear and concise

argument for the contentions made, with appropriate citations to authorities and to the

record.” TEX. R. APP. P. 38.1(i). Appellant does not explain his argument further or cite

to any authorities except for the standard of review. We overrule appellant’s second

argument as inadequately briefed. See id. We overrule appellant’s fourth issue.

VI. IMPEACHMENT OF B.F.

Appellant argues in his fifth issue that the State did not lay the proper predicate

before impeaching B.F. with her prior inconsistent statement. We disagree.

A. Standard of Review & Applicable Law

We review a trial court’s decision to admit evidence for a clear abuse of discretion,

and we will not reverse as long as the judge’s decision lies within the zone of reasonable

disagreement. McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008). We view

the evidence in the light most favorable to the trial court’s decision to admit the statement.

Klein v. State, 273 S.W.3d 297, 304 (Tex. Crim. App. 2008).

Texas Rule of Evidence 613(a) governs the impeachment of witnesses with prior

inconsistent statements, and provides in pertinent part:

In examining a witness concerning a prior inconsistent statement made by
the witness, whether oral or written, and before further cross-examination
concerning, or extrinsic evidence of, such statement may be allowed, the
witness must be told the contents of such statement and the time and place
and the person to whom it was made, and must be afforded an opportunity
to explain or deny such statement.

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TEX. R. EVID. 613(a); Harris v. State, 152 S.W.3d 786, 795 (Tex. App.—Houston [1st Dist.]

2004, pet. ref’d); Flores v. State, 48 S.W.3d 397, 404 (Tex. App.—Waco 2001, pet. ref’d).

The trial court should not admit the prior inconsistent statement unless the proper

predicate has been laid. Harris, 152 S.W.3d at 795 (citing Moore v. State, 652 S.W.2d

411, 413 (Tex. Crim. App. 1983) (en banc)).

B. Discussion

Appellant argues that the recording of Lopez’s interview with B.F. was improperly

admitted because the State did not give B.F. the chance to “either admit or deny the

testimony.” The following exchange occurred between the State and B.F. before the

State offered the audio recording into evidence:

[State]: That's okay. Was there ever any time that your dad and [C.T.]
were alone?

[B.F.]: No.

[State]: No? And it's okay if you don't but I want to try to refresh your
memory, remember, okay? Do you remember talking with
someone named Frank from Child Protective Services back
in October at the St. John's house?

[B.F.]: Yes.

[State]: Yes? And do you remember talking to him and he was asking
you questions?

[B.F.]: Yes.

[State]: And do you remember that he asked you if you had ever seen
your dad and [C.T.] alone. Do you remember that?

[B.F.]: Yes.

[State]: And do you remember that you told him that you had seen
them alone?

18
 [B.F.]: I didn't say that.

[State]: You didn't say that? Do you remember that you told him that
you saw them alone a lot of times?

[B.F.]: No.

[State]: You didn't say that? Do you remember telling him that you
saw them alone in your dad's bedroom?

[B.F.]: No.

[State]: And that the door was closed?

[B.F.]: No.

[State]: Do you remember saying that you and your brother would be
watching television when that happened?

[B.F.]: No.

In the above exchange, the State informed B.F. of the substance of the

inconsistent statement, the time and place in which it was made, and gave her an

opportunity to admit or deny that she made the statement. See TEX. R. EVID. 613(a).

Once B.F. denied that she told Lopez during the interview on October 3, 2011 that

appellant and C.T. were frequently alone together, the State met all of the requirements

of Texas Rule of Evidence 613(a). See id. We overrule appellant’s fifth issue.

VII. LIMITING INSTRUCTION ON IMPEACHMENT EVIDENCE

Appellant argues by his sixth issue that the court erred by denying his request for

a limiting instruction on the audio recording of B.F.’s interview with Lopez. We disagree.

A. Applicable Law

Texas Rule of Evidence 105 provides in pertinent part:

When evidence which is admissible as to one party or for one purpose but
not admissible as to another party or for another purpose is admitted, the
court, upon request, shall restrict the evidence to its proper scope and

19
 instruct the jury accordingly; but, in the absence of such request the court's
action in admitting such evidence without limitation shall not be a ground for
complaint on appeal.

TEX. R. EVID. 105(a). The party opposing the evidence must request a limiting instruction

when the trial court admits the evidence or else it is admitted “for all purposes.” Arrington

v. State, 451 S.W.3d 834, 842 (Tex. Crim. App. 2015); Hammock v. State, 46 S.W.3d

889, 894 (Tex. Crim. App. 2001). The reason for requiring a contemporaneous request

for a limiting instruction is that “[a]llowing the jury to consider evidence for all purposes

and then telling them to consider that same evidence for a limited purpose only is asking

a jury to do the impossible.” Hammock, 46 S.W.3d at 894.

B. Discussion

When the State offered the recording of B.F.’s interview with Lopez into evidence,

appellant objected on the basis of relevance, optional completeness, and improper

impeachment of a witness, but, like the defendant in Hammock, did not request a limiting

instruction until the charge conference. See id. at 895. Appellant asserts that his

objection on the basis of improper impeachment was sufficient to put the trial court on

notice that a limiting instruction should be given, but provides no support for this

proposition. Appellant, as the party opposing the evidence, had the burden to request a

limiting instruction at the time the trial court admitted the evidence. See Garcia v. State,

887 S.W.2d 862, 878 (Tex. Crim. App. 1994) (en banc), abrogated in part on other

grounds, Hammock, 46 S.W.3d at 893; accord Reeves v. State, 99 S.W.3d 657, 658 (Tex.

App.—Waco 2003, pet. ref'd); Arana v. State, 1 S.W.3d 824, 829 (Tex. App.—Houston

[14th Dist.] 1999, pet. ref'd). Because appellant did not request a limiting instruction at

the first opportunity, we hold that the court did not err in not giving the instruction. See

20
Arrington, 451 S.W.3d at 842; Hammock, 46 S.W.3d at 895. We overrule appellant’s

sixth issue.

VIII. ADMISSION OF VIDEO FROM MAGGIE’S HOUSE INTERVIEW

By his seventh issue, appellant argues the trial court erred in admitting the video

recording of C.T.’s interview at Maggie’s House because it did not meet the requirements

for admission of prior consistent statements of a witness. See TEX. R. EVID. 801(e)(1)(c).

We disagree.

A. Standard of Review and Applicable Law

We review a trial court’s decision to admit evidence for a clear abuse of discretion,

and we will not reverse as long as the judge’s decision lies within the zone of reasonable

disagreement. McCarty, 257 S.W.3d at 239. We view the evidence in the light most

favorable to the trial court’s decision. See Klein, 273 S.W.3d at 304.

A prior consistent statement of a witness is generally inadmissible except as

provided by Texas Rule of Evidence 801. TEX. R. EVID. 613(c). Under that rule, a prior

consistent statement of a witness is admissible if (1) the witness has testified and is

subject to cross-examination, and (2) the statement is “consistent with the declarant's

testimony and is offered to rebut an express or implied charge against the declarant of

recent fabrication or improper influence or motive.” TEX. R. EVID. 801(e)(1)(c). The trial

court has substantial discretion to admit a prior consistent statement even if there has

been “only a suggestion of conscious alteration or fabrication.” Hammons v. State, 239

S.W.3d 798, 804–05 (Tex. Crim. App. 2007) (internal quotation marks omitted). The rule

does not permit courts to admit evidence that would otherwise be hearsay whenever a

witness’s memory or credibility is challenged, but there is no bright-line rule to distinguish

21
between a general challenge to the witness’s memory or credibility and a suggestion of

conscious alteration or fabrication. Id. at 805. The trial court should determine if the

cross-examiner’s questions or the tenor of the questioning would “reasonably imply an

intent by the witness to fabricate.” Id. The implication may be subtle and may come

through the “tone, tenor, and demeanor” of the questioning or the cross-examiner. Id. at

808. Reviewing courts, “in assessing whether the cross-examination of a witness makes

an implied charge of recent fabrication or improper motive, should focus on the purpose

of the impeaching party, the surrounding circumstances, and the interpretation put on

them by the [trial] court.” Id. (brackets and emphasis in the original, internal quotation

marks omitted).

B. Discussion

Two exchanges occurred between appellant’s counsel and C.T. during cross-

examination. The first exchange referenced inconsistencies between C.T.’s previous

statements and those she made during her interview at Maggie’s House regarding the

circumstances surrounding the first incident of abuse:

[Defense]: You said you were eight years old?

[C.T.]: Yes, sir.

[Defense]: The first time it occurred, right?

[C.T.]: Yes, sir.

[Defense]: You also said it happened in Pittsburgh, Texas?

[C.T.]: Yes, sir.

[Defense]: Okay. You said you were in the third grade?

[C.T.]: Yes, sir.

22
[Defense]: Okay. It's also true that you said that you're alleging that you
were touched on your vagina with the fingers; is that right?

[C.T.]: Yes, sir.

[Defense]: So you are saying that this happened before your
grandmother [name omitted] was going to pick you up for a
performance; is that right?

[C.T.]: Yes, sir.

[Defense]: Okay. And after this occurred your grandmother picked you
up; is that right?

[C.T.]: Yes, sir.

[Defense]: [C.T.], isn't it true that you told the interviewer Monica Galvan
at Maggie's House that that was not the first time it occurred?
Didn't you give her a different account of the first time it
occurred?

[C.T.]: I corrected myself at the end of the interview.

[Defense]: You corrected yourself at the end of the interview?

[C.T.]: Yes, sir.

[Defense]: So that would be in that interview if you corrected yourself at
the end of that interview, it would be in that interview that the
state has; is that correct?

[C.T.]: Yes, sir.

[Defense]: Isn't it true that you told the interviewer at Maggie's House the
first time it happened was in fact when you did come home
sick one day from school?

[C.T.]: Yes, sir.

[Defense]: Okay. And you'd agree those are two different statements,
right? Two different recollections of the first time it occurred?

[C.T.]: Yes, sir. But I did correct myself at the end of that video

23
 The second exchange referenced inconsistencies between C.T.’s testimony and

her statements at Maggie’s House regarding the time period in which the abuse ceased:

[Defense]: All right. You also talked that he would also touch your
breasts; is that right?

[C.T.]: Yes, sir.

[Defense]: What would he do when he would touch your breast[s]? What
happened then?

[C.T.]: He just moved them around or he’d grab his thumb around my
nipples or he’d suck on them.

[Defense]: When was the last time that occurred that he ever did that?
Do you remember?

[C.T.]: I don’t have an exact date. I don’t remember exactly when.

[Defense]: Did you ever give an estimation to anyone as to when that
may have stopped?

[C.T.]: No, sir.

[Defense]: You never told the interviewer at Monica’s House when it
stopped, at Maggie’s House?

[C.T.]: Not that I can remember.

[Defense]: You never told her that it stopped before July 4th?

[C.T.]: Not that I can remember.

As appellant reiterated multiple times on appeal, his trial counsel’s overriding

strategy was to highlight the inconsistencies in C.T.’s various statements to Chesney,

Natalie, Officer Andrade, Lopez, the Maggie’s House interviewer, and her testimony at

trial. Trial counsel’s cross-examination of C.T. dwelt almost entirely on various

inconsistencies in her statements. In the selections we quoted above, counsel identified

two inconsistencies between the Maggie’s House interview and other statements: C.T.’s

24
description of the first incident of abuse and the time period in which it ceased. The trial

court evidently interpreted the “tone, tenor, and demeanor” of the questioning as raising

a charge of fabrication by commenting that appellant “called the issue of consistency or

inconsistency into issue.” Thus, the purpose of the impeaching party, the surrounding

circumstances, and the trial court’s interpretation of the questioning all support the trial

court’s ruling. See Hammons, 239 S.W.3d at 808. Deferring to the trial court’s

“substantial discretion” to admit prior consistent statements after determining that the

witness’s credibility has been challenged, we conclude that the trial court did not err in

admitting the recording. See id. at 804–05

Appellant presents an additional argument under this issue: even if the State’s

theory is correct, the tape should not have been admitted into evidence because the State

did not segregate the admissible portions of the interview from those containing

inadmissible statements. Appellant objected on hearsay grounds, but he did not request

that the State segregate the inadmissible portions, if any, from what was admissible.

Appellant is correct in his argument that Texas Court of Criminal Appeals precedent is

that if admissible and inadmissible statements are not segregated the trial judge “may

properly exclude all of the statements,” but the Court held in the same case cited by

appellant that the “trial court need never sort through challenged evidence in order to

segregate the admissible from the excludable, nor is the trial court required to admit only

the former part or exclude only the latter part.” Willover v. State, 70 S.W.3d 841, 847

(Tex. Crim. App. 2002) (internal quotation marks omitted); accord Whitaker v. State, 286

S.W.3d 355, 369 (Tex. Crim. App. 2009); Reyna v. State, 168 S.W.3d 173, 178 (Tex.

Crim. App. 2005). Following Willover, we hold that the trial court did not abuse its

25
discretion in admitting the entire portion of the interview because appellant did not request

that the inadmissible and admissible portions of the recording be segregated or specify

which portions were inadmissible. See Whitaker, 286 S.W.3d at 369; Reyna, 168 S.W.3d

at 178; Willover, 70 S.W.3d at 847. We overrule appellant’s seventh issue.

IX. WITNESS COMMENTARY

By his eighth issue, appellant argues that the State elicited improper opinion

testimony from Chesney, Lopez, Detective Cisneros, Sonia Eddleman,9 and C.T.’s

biological father on the credibility of C.T.’s allegations. We disagree.

To preserve error for appellate review, the complaining party must make a timely,

specific request or objection and obtain an adverse ruling from the trial court. TEX. R.

APP. P. 33.1(a); Brewer v. State, 367 S.W.3d 251, 253 (Tex. Crim. App. 2012). Failure to

object to the admission of evidence waives any complaint on appeal. Reyes v. State, 84

S.W.3d 633, 638 (Tex. Crim. App. 2002). Our review of the record shows that appellant

did not object to any of the testimony he now references in his brief. Appellant has not

directed us to any place in the record where he objected. Accordingly, we conclude that

appellant has waived this issue. TEX. R. APP. P. 33.1(a); see Brewer, 367 S.W.3d at 253;

Reyes, 84 S.W.3d at 638. We overrule appellant’s eighth issue.

X. TESTIMONY OF JUSTICE OF THE PEACE DAVID GARZA

Appellant argues by his ninth issue that the trial court erred by refusing to present

Justice of the Peace David Garza as a witness. Appellant’s counsel requested on the

record that the court permit him to call Judge Garza because he wanted to solicit

testimony regarding why Judge Garza found a probable-cause affidavit submitted by

9 Sonia Eddleman, a trained Sexual Assault Nurse Examiner, did not personally examine C.T., but
testified to the contents of C.T.’s medical records after reviewing them.

26
Detective Cisneros to be insufficient to justify issuing a warrant. The trial judge stated

that he would not allow Judge Garza to be subject to subpoena “to testify as to his mental

process on granting or denying anything.” Appellant asserts that the court’s ruling

violated his right to compulsory process to obtain witnesses under the state and federal

constitutions. We disagree.

A. Standard of Review and Applicable Law

Criminal defendants have a right under the state and federal constitutions to

compulsory process to obtain witnesses. See U.S. CONST. amend. VI; TEX. CONST. art. I,

§ 10; see also Williams v. State, 273 S.W.3d 200, 232 (Tex. Crim. App. 2008). But that

right is not absolute. Tope v. State, 429 S.W.3d 75, 83 (Tex. App.—Houston [1st Dist.]

2014, no pet.). We review limitations on the right to compulsory process for an abuse of

discretion. Lawal v. State, 368 S.W.3d 876, 885 (Tex. App.—Houston [14th Dist.] 2012,

no pet.) (citing Drew v. State, 743 S.W.2d 207, 225 n. 11 (Tex. Crim. App. 1987) (en

banc)).

B. Discussion

As a general rule, judges may testify in proceedings over which they are not

presiding if they are competent to do so.10 Hensarling v. State, 829 S.W.2d 168, 171

(Tex. Crim. App. 1992) (en banc). However, courts have refused to issue subpoenas for

judges to testify about the mental processes by which they reached a decision “absent

extreme and extraordinary circumstances.” Gary W. v. State of La., Dept. of Health &

10 A judge may not testify in a proceeding over which the judge is presiding. TEX. R. EVID. 605;

Hensarling v. State, 829 S.W.2d 168, 171 (Tex. Crim. App. 1992) (en banc); State v. Stewart, 282 S.W.3d
729, 736 (Tex. App.—Austin 2009, no pet.). The Texas Supreme Court has held that that this rule applies
not only to judges but also to all persons performing judicial functions. Bradley v. State ex rel. White, 990
S.W.2d 245, 249 (Tex. 1999).

27
Human Res., 861 F.2d 1366, 1369 (5th Cir. 1988) (internal quotation marks omitted). The

Fifth Circuit has explained that permitting “such an examination of a judge would be

destructive of judicial responsibility” because:

While a judge enjoys no special privilege from being subpoenaed as a
witness, it is imperative when he is called to testify as to action taken in his
judicial capacity, to carefully scrutinize the grounds set forth for requiring his
testimony. Should a judge be vulnerable to subpoena as to the basis of
every action taken by him, the judiciary would be open to frivolous attacks
upon its dignity and integrity, and interruption of its ordinary and proper
functioning.

United States v. Anderson, 560 F.3d 275, 282 (5th Cir. 2009) (quoting Gary W., 861 F.2d

at 1369); see United States v. Morgan, 313 U.S. 409, 422 (1941) (suggesting that a judge

cannot be required to testify regarding his mental impressions of a case). The few Texas

courts to address cases where a non-presiding judge was called to testify have all

recognized the federal “mental processes” rule or have spoken of it with approval.

Thomas v. Walker, 860 S.W.2d 579, 582 (Tex. App.—Waco 1993, orig. proceeding)

(citing Morgan, 313 U.S. at 421); Tate v. State, 834 S.W.2d 566, 570 (Tex. App.—Houston

[1st Dist.] 1992, pet. ref'd). When confronted with an appeal challenging an order

quashing a subpoena of a visiting judge who presided over a portion of the defendant’s

case, the First Court of Appeals reasoned as follows:

Texas law has not established circumstances or conditions under which a
judicial official might properly be compelled to articulate his reasons for a
decision in a particular case, and we do not propose to state such a rule
here. However, we conclude that if such a rule were to be established, the
better rule would require, at the very least, a threshold showing of improper
conduct on the part of the judge that would justify compelling him to testify.

Tate, 834 S.W.2d at 570.

We find the Tate Court’s reasoning to be sound and apply it to the situation before

us. Texas law has not established under what circumstances or conditions a non-

28
presiding judge or judicial officer may be called to testify about their mental processes,

but if we were to establish such a rule, it would at least require a threshold showing of

improper conduct on the part of the judge. See id.; Walker, 860 S.W.2d at 582 (requiring

a threshold showing of improper conduct on the part of a judge to justify requiring the

judge to testify regarding his mental processes); see also Sims v. Fitzpatrick, 288 S.W.3d

93, 102 n.5 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (citing Tate and noting that

even if appellants had preserved their general complaint that the assigned judges erred

in quashing subpoenas issued to the trial judge, they still would have to show the

existence of extraordinary circumstances). In this case, appellant has made no showing

of improper conduct on the part of Judge Garza or shown any other extraordinary

circumstance that would justify requiring him to testify. Applying the reasoning of Tate,

we hold that the trial court did not abuse its discretion in refusing to permit appellant to

call Judge Garza as a witness. See Tate, 834 S.W.2d at 570. We overrule appellant’s

ninth issue.

XI. OBJECTIONS UNDER TEXAS RULES OF EVIDENCE 402/403/404

Appellant argues in his tenth, eleventh, and twelfth issues that the trial court

committed reversible error by overruling his objections under Texas Rules of Evidence

402, 403, and 404 to Natalie’s testimony that she warned Chesney not to be in the pool

with appellant because he “acted like a teenage boy and not like a dad in the pool with

the girls.”

A. Standard of Review and Applicable Law

We review a trial court’s decision to admit evidence for a clear abuse of discretion,

not reversing so long as the judge’s decision lies within the zone of reasonable

29
disagreement. McCarty, 257 S.W.3d at 239. We will uphold the ruling if it is correct on

any applicable theory of law even if the trial court relied on an incorrect reason for

reaching its decision. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

B. Discussion

The following exchange occurred during the State’s redirect examination of

Natalie:

[State]: And defense counsel was talking with you about how the
defendant would come over to your house. You said that he
would spend time outside, and you also said that occasionally
when he did [come] into your house you were there, correct?
And defense counsel [sic] said that stated you must be okay
with him being around your children. Is that a correct
statement?

[Natalie]: I'm really careful about who’s around my kids. Like did I have
them babysit or babysit my children, to [?]

[State]: Would you leave your kids alone with him?

[Natalie]: No.

[State]: Did they ever stay alone with him?

[Natalie]: No.

[State]: Did you ever warn your children?

[Natalie]: Yes. I told my daughter to—

[Defense]: Objection, Your Honor, relevance.

[State]: Your Honor, Defense counsel made it clear—

[Trial Judge]: I’m going to overrule that objection.

[State]: You can answer.

[Natalie]: I just told my daughter not to be alone with [Appellant] and
especially, well, I told her never to be in the swimming pool
with him.

30
 Appellant’s counsel requested to approach the bench. After a bench conference

off the record, the trial judge held a hearing outside of the presence of the jury to consider

appellant’s renewed objections.11 At the hearing, Natalie testified that her full answer to

the State’s question would have been that she “had seen inappropriate behavior between

him and other girls, and between him and my daughter. Just like you would see from a

teen-age boy trying to accidentally cop a feel only he’s a dad.” The trial judge overruled

appellant’s objections but stated that he would allow the State “to go into it very briefly,

but only very briefly.” The trial judge also instructed that Natalie should not state that

appellant would try to “cop a feel.” The State responded that it would “not go beyond

what has already been said.” Natalie testified in the presence of the jury that she did not

want Chesney to be in the pool with appellant because he “acted like a teen-age boy and

not like a dad in the pool with the girls.” Natalie further testified that she thought this was

“very inappropriate behavior.”

Appellant argues that the court’s ruling was error, but we conclude that the error,

if any, was harmless. We review the erroneous admission of evidence concerning

extraneous offenses or bad acts for harm under Texas Rule of Appellate Procedure

44.2(b). Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007); see TEX. R. APP.

P. 44.2(b). Under this standard, we must disregard the error if, after examining the record

as a whole, we have come to a “fair assurance” that the error did not affect appellant’s

11Texas Rule of Appellate Procedure 33.1 requires a timely and specific objection to appear in the
record. See Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999) (en banc) (citing TEX. R. APP. P.
33.1). Appellant did not renew his objections on the record. However, during the hearing, after Natalie
answered the judge’s question regarding what her testimony would have been had appellant’s counsel not
asked to approach, counsel responded: “Judge, that’s totally [inadmissible] under [Texas Rules of
Evidence] 402, 403, and 404.” We will treat appellant’s counsel’s statement as a further renewal of his
objections that is sufficient to preserve error. See TEX. R. APP. P. 33.1.

31
substantial rights, see TEX. R. APP. P. 44.2, because it did not influence the jury’s verdict

or had but a slight effect. Casey, 215 S.W.3d at 855. In assessing the likelihood that the

jury’s decision was adversely affected by the error, we pay particular attention to factors

such as the testimony or physical evidence admitted for the jury’s consideration, the

nature of the evidence supporting the verdict, the character of the alleged error, and how

it may be considered in connection with other evidence in the case. Haley v. State, 173

S.W.3d 510, 518 (Tex. Crim. App. 2005). We may also consider the jury instructions, the

State’s theories, any defensive theories, closing arguments, voir dire, and the State’s

emphasis on the error. Id. at 518–19.

After examining the record of the trial as a whole, we conclude that the error, if

any, in admitting this part of Natalie’s testimony did not have a substantial and injurious

effect or influence in determining the jury’s verdict. First, the jury heard substantial

testimony from Chesney, Natalie, and C.T. regarding appellant’s actions. Second, neither

the State nor appellant emphasized this portion of Natalie’s testimony. Third, the alleged

error did not affect appellant’s defensive theory, which was to call into question the

truthfulness of C.T.’s statements as a whole. Given the miniscule part that Natalie’s

testimony played in the State’s case and the State’s lack of emphasis on it, the jury likely

gave it little weight in comparison to the other evidence before it. See id. at 518. Based

on the whole record of the trial, if there was an error in admitting this portion of Natalie’s

testimony, it did not have a substantial or injurious effect or influence in determining the

jury’s verdict. See Casey, 215 S.W.3d at 855. We overrule appellant’s tenth, eleventh,

and twelfth issues.

32
 XII. COMMENTS OF THE TRIAL JUDGE AND PROSECUTOR

By his thirteenth and fourteenth issues, appellant argues that the trial judge and

the State committed fundamental error by making improper comments during voir dire.

To preserve a complaint of improper voir dire for appellate review, a party must make a

timely and specific objection and receive an adverse ruling from the trial court. Archie v.

State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007); TEX. R. APP. P. 33.1. Here, because

appellant did not object, he has waived his complaint on appeal except for fundamental

error. See Archie, 221 S.W.3d at 699; McLean v. State, 312 S.W.3d 912, 915 (Tex.

App.—Houston [1st Dist.] 2010, no pet.).

A. Standard for Fundamental Error

The applicable test for determining whether an error during voir dire is

fundamental, and therefore may be raised for the first time on appeal, is whether the error

involves a violation of a right that is “waivable only” or a denial of an absolute, systemic

requirement. Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003). This Court

has held in the past that the right to an impartial judge is an absolute, systemic

requirement that may be raised for the first time on appeal if the judge’s comments are

“so egregious as to deem the judge biased.” Hernandez v. State, 268 S.W.3d 176, 185–

86 (Tex. App.—Corpus Christi 2008, no pet.).

B. Discussion

Appellant argues here that the trial judge commented on the evidence and shifted

the burden of proof by saying in reference to the State’s burden that: “[i]t's not a problem.

You wouldn't be here if they didn't think they could prove it . . . .” However, we evaluate

a judge’s comments in the context of the record as a whole. See Lopez v. State, 415

33
S.W.3d 495, 498 (Tex. App.—San Antonio 2013, no pet.). The trial judge’s full remarks

are as follows:

[The prosecutors] have the burden of proving the guilt and that burden never
switches. It's a burden that they welcome. It's not a problem. You wouldn't
be here if they didn't think they could prove it, however, whether they prove
it or not is something that you must be satisfied beyond a reasonable doubt.

Read in context, the trial judge’s remarks did not shift the burden of proof away

from the State. The trial judge specifically reiterated that the State bears the burden of

proof and that the jury is the sole judge of whether the State succeeded in proving its

case beyond a reasonable doubt. We hold that appellant has not demonstrated

fundamental error because he has not shown that the judge’s comments were so

egregious as to deem him biased. See Hernandez, 268 S.W.3d at 185–86.

With regard to the prosecutor’s comments, appellant has not directed us to any

authority that improper arguments or comments during voir dire by a party, as opposed

to the trial judge, rise to the level of fundamental error. However, by arguing the State

shifted the burden of proof, appellant’s argument could be interpreted as going to the

absolute, systemic requirement that a person may only be found guilty of an offense if a

rational trier of fact finds sufficient evidence to prove all of the elements of the offense

beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 362–64 (1970). Assuming,

without deciding, that arguments by the State during voir dire shifting the burden of proof

may rise to the level of fundamental error, we will address appellant’s claims that the

State’s comments shifted the burden of proof to appellant in the interests of justice.12

12 The Amarillo Court adopted this approach when faced with a similar claim. See Huff v. State,
No. 07-10-00174-CR, 2010 WL 4828491, at *3 (Tex. App.—Amarillo Nov. 29, 2010, no pet.) (mem. op., not
designated for publication).

34
 Appellant cites the following portions of the State’s voir dire in support of his

argument that the State shifted the burden of proof to appellant:

Without you our system would fall apart. The bottom line is we can have a
case and it can have law enforcement that goes out to the scene, there can
be child protective services involved, we can have forensic interviewers, we
can have medical examiners, we can have prosecutors, we can have
investigators, but it wouldn't be anything without you because at the end of
the day we can bring the case to you that we believe we can prove beyond
a reasonable doubt but if you guys don't go there with us, if you don't sit and
listen to it, we've all done it in vain.

Shortly afterwards, during voir dire, the prosecutor stated:

Sexual abuse of children is a very conflicting topic. It's polarizing. People
don't want to hear about it. Raise your card if you know right now you don't
want to hear about it. So almost everybody. Raise them high. Keep them
up please, 2, 3, 4, 5, 8, 9, 15, 16, 17, 18, 19 and it goes on and on and on.
The truth is I don't blame you. When I started as a prosecutor, I didn't want
to hear about it either. But the truth is if everybody had a strong reaction to
child abuse didn't sit on jury panels, if that was a reason for you to be
excused from jury duty today, then either we wouldn't be able to have these
trials because there wouldn't be anybody to hear them or the people, worse,
the people that heard them would be people who didn't get emotional about
child abuse and what a tragedy that would be.

In the first quoted portion of voir dire, the State emphasized that the role of the jury

is important and that the State believed that it could carry its burden of proving its case

beyond a reasonable doubt. Before voir dire began, the trial judge emphasized that the

burden of proof rests with the State to prove all elements of the charged offenses beyond

a reasonable doubt, and the jury charge reflected that fundamental requirement. In the

second quoted portion, read in context, the prosecutor merely mentions how

uncomfortable many people feel at the thought of sexual abuse of children and asks the

members of the venire to refrain from seeking not to serve because they might feel

uncomfortable hearing the evidence in this case. We find nothing in either argument that

shifts the burden of proof to the defense or asks jurors to convict on the basis of the jurors’

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emotional repugnance for child abuse rather than the evidence presented in the State’s

case. We hold that State’s comments do not rise to the level of fundamental error. See

Aldirch, 104 S.W.3d at 895. We overrule appellant’s thirteenth and fourteenth issues.

XIII. CUMULATIVE ERROR

By his fifteenth issue, appellant argues that the cumulative effect of all of the errors

raised in his other issues requires reversal. The Texas Court of Criminal Appeals has

observed that “[i]t is conceivable that a number of errors may be found harmful in their

cumulative effect,” but there is no authority that “non-errors may in their cumulative effect

cause error.” Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (en

banc). Because we have found no error in all but one of appellant’s issues and here

concluded that that error, if any, was harmless, there is no cumulative error requiring

reversal. See id.; Gallegos v. State, 340 S.W.3d 797, 805 (Tex. App.—San Antonio 2011,

no pet.) (holding that there was no cumulative error requiring reversal when the court of

appeals overruled all but one of the appellant’s other issues). We overrule appellant’s

fifteenth issue.

XIV. CONCLUSION

We affirm the judgment of the trial court.

NORA L. LONGORIA
Justice

Publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
23rd day of April, 2015.

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