Lindberg, Timothy James

NO. PD-1389-15

TIMOTHY JAMES LINDBERG § IN THE COURT OF
§
VS. § CRUv'IINAL APPEALS
§
STATE OF TEXAS § OF TEXAS

PETITION FOR DISCRETIONARY REVIEW

On Discretionary Review from Cause Number 02-14-00071-CR
Second Court of Appeals, Fort Worth

Trial Court Cause Number 1255906D
432nd Judicial District
Tarrant County, Texas

Submitted by:

The Salvant Law Firm, PC
610 E. Weatherford
Fort Worth, Texas 76102
Phone: (817)334-7997
Fax: (817)334-7998
Brian Salvant
Texas Bar No. 24008387
November 23, 2015 E-mail: ~~~~~~~~.~~=~~~~~~~~~~~
Adam L. Arrington
State Bar of Texas No. 24085685
E-mail: =~~==~~==~~~~=

Attorneys for Appellant

ORAL ARGUMENT NOT REQUESTED

Page i
 I. Identity of Parties and Counsel

Timothy James Lindberg, Appellant

Brian W. Salvant, Attorney for Appellant on Appeal, 610 E. Weatherford St.,
Fort Worth, Texas 76102, phone (817) 334-7997, fax (817) 334-7998, email
brian@salvantlawfirm.com.

Adam L. Arrington, Attorney for Appellant on Appeal (Petition for
Discretionary Review), 610 E. Weatherford St., Fort Worth, Texas 76102, phone
(817) 334-7997, fax (817) 334-7998, email adamrg),salvantlawfirm.com.

Danny Burns, Attorney for Appellant at Trial, 115 North Henderson St., Fort
Worth, Texas 76102, phone (817) 870-1544, fax (817) 870-1589, email
dbumslaw@sbcglobal.net.

State of Texas, Appellee.

Sharen Wilson, Tarrant County District Attorney, Attorney for Appellee, 401
W. Belknap Street, Fort Worth, Texas 76196, phone (817) 884-1400, fax (817)
884-3333.

Dale Smith, Assistant District Attorney, Attorney for Appellee at Trial, 401
W. Belknap Street, Fort Worth, Texas 76196, phone 817-884-1400, fax (817) 212-
6973.

Kelly Meador, Assistant District Attorney, Attorney for Appellee at Trial, 401
W. Belknap Street, Fort Worth, Texas 76196, phone 817-884-1400, fax (817) 212-
6973.

Hon. Ruben Gonzalez, Jr., Judge presiding over trial (voir dire only), 432nd
Judicial District Court, Tarrant County, 401 West Belknap Street, Fort Worth,
Texas 76196, phone (817) 884-2935.

Hon. Elizabeth Berry, Judge presiding over trial, sitting by assignment, 432nd
Judicial District Court, Tarrant County, 401 West Belknap Street, Fort Worth,
Texas 76196, phone (817) 884-2935.

Page ii
 II. Table of Contents

I. Identity of Parties and Counsel.. ii

II. Table of Contents .iii

III. Table of Authorities v

IV. Statement Regarding Oral Argument viii

V. Statement of the Case ix

VI. Procedural History xi

VII. Questions or Grounds for Review 1

VIII. Argument 3

Question or Ground for Review One: Does a trial court abuse its
discretion by admitting, over a defendant's hearsay, due process
and confrontation clause objections, a video of the complainant's
entire forensic interview in evidence under the Rule of Optional
Completeness, when no part of the video had been given in
evidence by the defense, and there was no risk that the jury would
receive a false impression without watching the entire video?

Question or Ground for Review Two: Does an appellate court err
when it reviews a trial court's denial of a timely and properly
requested limiting instruction for an abuse of discretion?

Question or Ground for Review Three: Does a trial court err
when it admits evidence under the Rule of Optional Completeness
without a limiting instruction, if such an instruction is timely and
properly requested?

Page iii
 Question or Ground for Review Four: Does a trial court abuse its
discretion when it allows an expert witness to testify generally,
over objection, about "rolling" disclosures and what happens in
other cases without a showing that her testimony is sufficiently
tied to the facts of the case to aid the jury in resolving a factual
dispute, when the expert witness makes no effort to tie her
testimony to pertinent facts of the case?

Question or Ground for Review Five: Are any and all statements
made by a patient to a sexual assault nurse examiner (SANE)
during the SANE's examination of the patient admissible to prove
the truth of the matter(s) asserted under Texas Rule of Evidence
803(4)?

Question or Ground for Review Six: Under the Jackson v.
Virginia standard, are a complainant's uncorroborated, unsworn
out-of-court statements legally sufficient evidence of guilt when
those statements are contradicted by the complainant's sworn
testimony at trial and the State and defense stipulate that the
complainant admitted the actus reus of the charged offense never
happened?

IX. Conclusion and Prayer 41

X. Certificate of Service , 42

XI. Certificate of Compliance with Rule 9.4 42

Appendix: Judgment and Opinion of the Court of Appeals in Lindberg v.
State, No. 02-14-00071-CR (Tex. App.-Fort Worth, September 24, 2015)

Page iv
 III. Table of Authorities

Beheler v. State, 3 S.W.3d 182 (Tex. App.-Fort Worth 1999, pet. ref'd) 31

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) 38

Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007) 24

Credille v. State, 925 S.W.2d 112 (Tex. App.-Houston [14th Dist.] 1996, writ
ref'd) 4,9,11

Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623 (Tex. 2002) 21

Fernandez v. State, 755 S.W.2d 220 (Tex. App.-Houston [1 Dist.] 1988), rev'd,
Fernandez v. State, 805 S.W.2d 451 (Tex. Crim. App. 1991) (en bane) 37

Fernandez v. State, 805 S.W.2d 451 (Tex. Crim. App. 1991) (en bane) 38

Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006) 24

Hammockv. State, 46 S.W.3d 889 (Tex. Crim. App. 2001) 14

Hoover v. State, No. 03-05-00641-CR, 2007 WL 619500 (Tex. App.-Austin Feb.
27,2007, no pet.) 16, 17

Jackson v. Virginia, 443 U.S. 307 (1979) 33,34, 35

Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000) (McCormick, P.l.,
dissenting), overruled by Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App.
2010) 38-39

Jordan v. State, 928 S.W.2d 550 (Tex. Crim. App. 1996) 21

Kimberlin v. State, 877 S.W.2d 828 (Tex. App.-Fort Worth 1994, writ
ref'd) 35,36,37

Page v
Lindberg v. State, No. 02-14-00071-CR, 2015 Tex. App. LEXIS 10042 (Tex. App.-
Fort Worth Sept. 24,2015) (mem. op., not designated for publication) passim

Mick v. State, 256 S.W.3d 828 (Tex. App.-Texarkana 2008, no pet.) 5, 6

Montgomery v. State, 810 S.W.2d 387 (Tex. Crim. App. 1991) (Op. on
Reh'g) 23,24,25

Salazar v. State, 127 S.W.3d 355 (Tex. App.-Houston [14th Dist.] 2004, pet.
ref'd) 22, 24

Sauceda v. State, 129 S.W.3d 116 (Tex. Crim. App. 2004) (en bane) 9, 10, 11

Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008) 28,29, 30, 31

Tear v. State, 74 S.W.3d 555 (Tex. App.-Dallas 2002, pet. ref'd) 35,36

Tibbs v. Florida, 457 U.S. 31 (1982) 40

Washington v. State, 856 S.W.2d 184 (Tex. Crim. App. 1993) (per curiam) ..... 6, 7

Williams v. State, 895 S.W.2d 363 (Tex. Crim. App. 1994) 21-22

Statutes and Rules

Tex. Penal Code Ann. § 22.021(a)(1)(B) (West Supp. 2015) 33

Tex. R. App. Proc. 9.4 42

Tex. R. App. Proe. 9.5 42

Tex. R. App. Proe. 9.10 4

Tex. R. App. Proc. 44.2 12, 25, 31

Page vi
Tex. R. App. Proc. 47.7 17

Tex. R. App. Proc. 66.3 passim

Tex. R. App. Proc. 68.4 viii, 2

Tex. R. App. Proc. 68.11 42

Tex. R. Evid. 105 14, 17

Tex. R. Evid. 107 passim

Tex. R. Evid. 401 21,23

Tex. R. Evid. 403 22,23,26

Tex. R. Evid. 803 passim

Page vii
 IV. Statement Regarding Oral Argument

Pursuant to Texas Rule of Appellate Procedure 68.4(c), Appellant does not

request oral argument. Although this is a meritorious petition for discretionary

review, Appellant believes that the facts and legal arguments are adequately

presented in this Petition and in the record. Appellant also believes that the

decisional process of the Court will not be significantly aided by oral argument.

The arguments are clear and concise and do not require oral argument to be

resolved. Further, the arguments were also clear and concise in the Appellant's

Brief to the Court of Appeals. As a result, Appellant does not request oral

argument and asks that the questions presented in this Petition be considered by

this Court by submission only.

Page viii
 To The Honorable Judges of the Court of Criminal Appeals:

Timothy James Lindberg, Appellant, respectfully submits this petition for

discretionary review:

V. Statement of the Case

Appellant was tried and convicted of two counts of aggravated sexual assault

of a child under 14 years of age. Count One alleged that Appellant intentionally or

knowingly caused the mouth of the complainant to contact Appellant's penis. (CR,

5)1. Count Two charged that he intentionally or knowingly caused the anus of the

complainant to contact his penis. Id. On appeal to the Second Court of Appeals,

Appellant raised nine points of error: two concerned the sufficiency of the

evidence; one complained of error during voir dire; four complained of evidentiary

errors; one concerned the trial court's failure to give a limiting instruction; and one

complained of improper jury argument. (See Appellant's Brief). The Court of

Appeals overruled all of Appellant's issues on appeal and affirmed the judgment of

the trial court. Lindberg v. State, No. 02-14-00071-CR (Tex. App.-Fort Worth,

September 24, 2015). This petition for discretionary review requests that this Court

review the judgment and opinion of the Second Court of Appeals. (See Appendix).

1 The Clerk's Record is referenced throughout this Brief as "CR," followed by the page number
of the Clerk's Record. The Reporter's Record, which is comprised of six volumes, is referenced
with an "RR" followed by the volume number (i.e., Volume 4 is referenced as "RR4") and by the
page number or Exhibit number within the Volume referenced.

Page ix
In this petition, Appellant presents six questions or grounds for review.

Page x
 VI. Procedural History

Appellant was charged by indictment with two counts of aggravated sexual

assault of a child under Cause Number 1255906D. (CR, 5). In a special issue, the

State alleged that, at the time the charged offense was committed, the complainant

was a child younger than six years of age. Id. Appellant pleaded "not guilty" to the

indictment and not true to the Special Issue. (RR002, 11,210).

On February 6, 2014, a jury found Appellant guilty of both counts of

aggravated sexual assault of a child under 14 years of age and also made an

affirmative finding on the special issue. (RR005, 83-85; CR22, 151-3; CR30, 95-

97). The court sentenced Appellant to 38 years in the Texas Department of

Criminal Justice on each count, to run concurrently. (CR, 67-71; RR005, 17).

Appellant appealed his conviction and sentence to the 2nd Court of Appeals,

Fort Worth. On September 24, 2015, the Court of Appeals affirmed Appellant's

conviction and sentence. Lindberg v. State, No. 02-14-00071-CR (Tex. App.-

Fort Worth, September 24,2015) (See Appendix).

Page xi
 VII. Questions or Grounds for Review

Appellant presents six questions or grounds for discretionary review.

Appellant asks this Court to determine the following: (1) Does a trial court abuse

its discretion by admitting, over a defendant's hearsay, due process and

confrontation clause objections, a video of the complainant's entire forensic

interview in evidence under the Rule of Optional Completeness, when no part of

the video had been given in evidence by the defense, and there was no risk that the

jury would receive a false impression without watching the entire video? (2) Does

an appellate court err when it reviews a trial court's denial of a timely and properly

requested limiting instruction for an abuse of discretion? (3) Does a trial court err

when it admits evidence under the Rule of Optional Completeness without a

limiting instruction, if such an instruction is timely and properly requested? (4)

Does a trial court abuse its discretion when it allows an expert witness to testify

generally, over objection, about "rolling" disclosures and what happens in other

cases without a showing that her testimony is sufficiently tied to the facts of the

case to aid the jury in resolving a factual dispute, when the expert witness makes

no effort to tie her testimony to pertinent facts of the case? (5) Are any and all

statements made by a patient to a sexual assault nurse examiner (SANE) during the

SANE's examination of the patient admissible to prove the truth of the matter(s)

asserted under Texas Rule of Evidence 803(4)? (6) Under the Jackson v. Virginia

Page 1
standard, are a complainant's uncorroborated, unsworn out-of-court statements

legally sufficient evidence of guilt when those statements are contradicted by the

complainant's sworn testimony at trial, and the State and defense stipulate that the

complainant admitted the actus reus of the charged offense never happened?

Pursuant to Texas Rule of Appellate Procedure 68.4(f), the pages of the

record in which the matter complained of are found throughout the reporter's

record and clerk's record, but especially in the following pages: Reporter's Record

Volume 3, pages 14-168; Reporter's Record Volume 6, pages 4-5; Clerk's Record

pages 5, 43.

Page 2
 VIII. Argument

Question or Ground for Review: Does a trial court abuse its discretion by
admitting, over a defendant's hearsay, due process and confrontation clause
objections, a video of the complainant's entire forensic interview in evidence
under the Rule of Optional Completeness, when no part of the video had been
given in evidence by the defense and there was no risk that the jury would
receive a false impression without watching the entire video?

1. Law and Argument

Introduction

This question pertains to the issue of the admissibility of State's Exhibit No.

2 (the video recording of the child complainant's forensic interview), which is the

basis of the sixth issue of Appellant's Brief to the Court of Appeals, in which

Appellant argued that the trial court committed reversible error when it admitted

State's Exhibit No.2 into evidence. (Appellant's Brief, pp. 79-91). Therefore,

should this Court grant this petition for discretionary review on this Question or

Ground for Review, Appellant asks that this Court also consider Appellant's

arguments in Issue Six of his direct appeal regarding the admissibility of State's

Exhibit No.2.

Opinion of the Court of Appeals

In its opinion, the Court of Appeals concluded that the trial court's decision

to admit State's Exhibit 2 in evidence was within the bounds of its discretion.

Lindberg v. State, No. 02-14-00071-CR, 2015 Tex. App. LEXIS 10042, at *14

Page 3
(Tex. App.-Fort Worth September 24, 2015) (mem. op., not designated for

publication). The Court relied on Credille v. State, 925 S.W.2d 112 (Tex. App.-

Houston [14th Dist.] 1996, writ ref'd), for the propositions that "when a portion of a

videotaped conversation is inquired into by the defense, the State is entitled to

offer any other evidence that is necessary to make the conversation fully

understood," and that, "under Rule 107, the State is entitled to admission of a

complainant's videotaped statement when (l) the defense attorney asks questions

concerning some of the complainant's statements on the videotape, (2) the defense

attorney's questions leave the possibility of the jury's receiving a false impression

from hearing only a part of the conversation, with statements taken out of context,

and (3) the videotape is necessary for the conversation to be fully understood."

Lindberg at * 14. The Court of Appeals reasoned that Appellant's opening

statements to the jury and repeated questions to the child complainant (who the

court referred to in its opinion as "Girl"2) and her mother on cross-examination

"left open the possibility that the jury would receive a false impression-that Girl

had denied that Lindberg touched her 'butt' with his penis, that Girl had described

a person other than Lindberg as the assailant, or that Girl appeared to have been

coached to make the statements that she made during the interview. Therefore, for

the jury to fully understand the context of the conversations and determine which

2 For the sake of continuity and to protect her identity, Appellant will refer to the child
complainant as "Girl" in this Petition. See Tex. R. App. Proc. 9.1O(a)(3), (b).

Page 4
interpretation was correct, the trial court determined it was necessary to review the

videotape." Id. The Court also cited Mick v. State, a Sixth Court of Appeals

opinion that used similar analysis to uphold the admission of a videotaped forensic

interview with the child complainant in an aggravated sexual assault of a child

case. 256 S.W.3d 828,831-32 (Tex. App.-Texarkana 2008, no pet.). Id. at *14.

As a result, the Court of Appeals overruled Appellant's sixth issue on appeal. Id.

Admissibility of State's Exhibit No.2

After Appellant's counsel finished his cross-examination of Carrie Paschall

and passed the witness, the State took the witness on voir dire outside the presence

of the jury, laid the predicate for admission of the video recording of her forensic

interview and offered State's Exhibit 2 "for all purposes." (RR003, 100-01; RR006,

Ex. 2). The State argued that the forensic interview should be admissible under

"the theory of optional completeness." (RR003, 102). Defense counsel expressed

his belief that the State could "introduce the part about her saying that T.J. did put

his penis in her mouth and touched it with her bottom and it hurt because I did ask

about that" and could also "ask about [Girl] describing T.J. as having no hair" and

being "tall and midsize" and that the State "could probably get the next sentence in

too being related to that."? (RR003, 104-06). However, he maintained that the State

3 It is not clear from the record, but counsel was probably referred to Girl's statements that T.J.
has "a wife" and "kids." (RR006, Ex. 2). She identified his children as "Kristen and Kaitlin and
Kevin" and their mother as "Nicole." Id.

Page 5
"cannot introduce the entire interview and report; they can only introduce those

portions which I questioned about." (RR003, 105). He then specified his objections

and reiterated, "They can ask about what [Girl] said about what T.J. did, but ...

they certainly can't introduce the interview and they certainly can't put in the entire

... statement." (RR003, 106). The State cited three appellate court opinions in

support of its argument that State's Exhibit 2 was admissible. (RR003, 107). The

trial court ruled that State's Exhibit No.2 be admitted before the jury, based "upon

the case law provided by the State and under Rule 107 of the Texas Rules of

Evidence." (RR003, 108).

State's Exhibit No.2 was not admissible in its entirety under the Rule of
Optional Completeness because Appellant had not yet given any part of the
forensic interview in evidence.

The Court of Appeals' reliance on Credille and Mick is misplaced. Mick is

distinguishable because in that case the defense specifically (and repeatedly)

referenced the forensic interview during its cross-examination of another witness

and elicited testimony from the witness about what the child told the forensic

interviewer and the forensic interview itself. 256 S.W.3d 830-31. This case is more

like Washington v. State, 856 S.W.2d 184 (Tex. Crim. App. 1993) (per curiam). In

Washington, an investigator working for the defense had taped a pre-trial interview

with one of the State's witnesses. Jd. at 186. During his cross-examination of the

witness at trial, the defendant asked the witness about various statements made

Page 6
during the interview with the investigator. Id. The witness denied telling the

investigator that he had seen someone named "Don" on the night of the murder but

admitted making the other statements that the defendant wished to show were

contradictory to his trial testimony. Id. Later, during its re-direct examination of

the witness, the State asked the trial court to require the investigator to produce the

tape recording of the interview. Id. Over appellant's objections, the tape was

admitted into evidence and played for the jury. Id. The Tenth Court of Appeals

held that the tape was properly admitted into evidence under the Rule of Optional

Completeness. Id. (footnote and citations omitted). This Court reversed the

decision of the Tenth Court of Appeals, explaining:

Although the contents of a tape are subject to the Rule of Optional
Completeness, the rule is not implicated until such time as a party
attempts to have a portion of it "given in evidence." TEX.R.CRIM.
EVID. 107. Then, the adverse party is entitled to introduce into
evidence the remaining parts of the "act, declaration, conversation,
writing or recorded statement," or any related "act, declaration,
conversation, writing or recorded statement" necessary to a full
understanding of the evidence. Id. Clearly, the first requirement of
Rule 107 is that matter "be given" in evidence. Failing that, there is no
justification under the rule for allowing introduction of the entire
matter.

856 S.W.2d at 186. This Court held that the Court of Appeals erred in holding that

the tape-recording was properly admitted into evidence under Rule 107 because

"no mention was made of the taped conversation," "the witness (Wilkerson) was

not aware of the tape's existence during his cross-examination," the defendant

Page 7
"made no attempt to introduce the tape's contents into evidence," and the witness

"was available to fully answer all questions surrounding his interview by

appellant's investigator." Id. at 186-87. Similarly, in the present case, Girl was

available to fully answer all questions surrounding her forensic interview, and at

the point when the State offered State's Exhibit 2 in evidence, Appellant had yet to

begin his case in chief; he had not called any witnesses and had offered only one

exhibit, a picture of Girl and "Shamus," in evidence, which was admitted. (RR003,

34; RR006, Defendant's Ex. 1). In upholding the trial court's decision to admit the

entire video, the Court of Appeals referenced some things Appellant's counsel said

in his opening statement, Lindberg at * 14, but what the lawyers say is not

evidence. Appellant made no mention of the video recording of the forensic

interview and no attempt to introduce it into evidence. Because no part of State's

Exhibit 2 had been "given in evidence" by Appellant, the entire exhibit was not

admissible under the Rule of Optional Completeness.

State's Exhibit 2 was not admissible in its entirety under Rule 107.

Even if Appellant had "given" part of the forensic interview "in evidence" at

this point, the Rule of Optional Completeness would only operate to allow the

State to: (1) inquire into the whole on the same subject, and (2) give any other act,

declaration, writing or recorded statement that is necessary to make it fully

understood or to explain the same in evidence. Tex. R. Evid. 107. For this reason,

Page 8
Credille is also distinguishable from the instant case. In Credille, the Fourteenth

Court of Appeals ruled that, because the defendant inquired into a videotaped

interview of the complainant, "the State was entitled to offer any other evidence

that was necessary to make the conversation fully understood." 925 S.W.2d at 117.

However, in that case, the defendant challenged the complainant's credibility

during her interview and attacked the interviewer' s failure to follow through on her

investigation. Id. at 117. "For those reasons," the Court of Appeals said, "the trial

court did not err in admitting the entire videotape under Rule 107." Id. By contrast,

here, Appellant did not challenge the complainant's credibility during her forensic

interview-on the contrary, his defense relied on the fact that Girl was truthful

when she denied that he molested her and described someone else as her

assailant-and he did not attack the failure of law enforcement to follow through

on their investigation of Girl's allegations. The admission of the entire forensic

interview was therefore not necessary to make whatever Appellant had "given in

evidence" fully understood or to explain the same.

Sauceda v. State, 129 S.W.3d 116~ 123 (Tex. Crim. App. 2004) (en bane),

illustrates this point. In Sauceda, another aggravated sexual assault of a child case,

the defense had attempted at trial to introduce the testimony of a CPS caseworker

who interviewed the victim about the incident. 129 S.W.3d at 117. The trial court

ruled that the State could introduce the entire videotape of the interview, which

Page 9
contained numerous references to uncharged offenses, into evidence if the

caseworker testified, under the Rule of Optional Completeness. Id. Just like in this

case, the State relied on Credille to support its argument in Sauceda, while the

appellant cited Washington. Id. at 119-20 (citations omitted). This Court

distinguished Credille by pointing out that the defense in that case "pointed to

specific statements made by the complainant during the interview which, taken out

of context, could indeed have created the possibility of the jury receiving a false

impression from hearing only a part of some act, conversation, or writing." Id. at

123 (citations and internal quotations omitted). Similarly, in the instant case, there

was no possibility in this case that the jury would receive a false impression

without seeing the entire video of Girl's forensic interview. Unlike in Credille, the

complainant in this case was available to (and did) testify regarding the specific

matters about which Appellant cross-examined other witnesses. After identifying

Appellant as "T.J.," Girl testified that it was "T.J." who put his "tee-tee" in her

mouth, no one else put their "tee-tee" in her mouth, and "T.J." did not touch her

anywhere else on her body. (RR3, 53). After being questioned about Shamus and

showing the jury that she knew who Shamus was, Girl explicitly testified that

Shamus never touched her with his private part. (RR3, 59). Thus, it was not

necessary to admit the entire video of her forensic interview in evidence.

Further, the "false impression" the Court of Appeals said the jury might have

Page 10
received-"that Girl had denied that Lindberg touched her 'butt' with his penis,

that Girl had described a person other than Lindberg as the assailant, or that Girl

appeared to have been coached to make the statements that she made during the

interview"-was not false at all. Girl had denied that Lindberg touched her "butt"

with his penis, and she did describe a person other than Lindberg as the assailant.

(RR006, Ex. 2). Whether she appeared to have been coached to make the

statements that she made was a matter of interpretation, not an objective statement

that could be proven true or false. Thus, unlike in Credille, the defense attorney's

questions did not leave the possibility of the jury's receiving a false impression

from hearing only a part of the conversation, and therefore Rule 107 does not allow

for the admission of the entire forensic interview in evidence.

In the alternative, Credille and Mick were
wrongly decided and should be overruled.

Assuming arguendo that Credille and Mick are applicable to this case, the

conclusions reached by the appellate courts on the Rule 107 issues in those cases

are at odds with the plain language of the Rule of Optional Completeness and this

Court's decisions in Washington and Sauceda. This Court even acknowledged in

Sauceda that Credille "apparently contradict[s] the holding in Washington,"

though it stopped short of expressly disapproving Credille. 129 S.W.3d at 122.

This case presents this Court with the opportunity to resolve this discord and

clarify its holdings in Washington and Sauceda.

Page 11
 The Court of Appeals did not analyze whether the trial court's error was
harmful.

Because the Court of Appeals rejected Appellant's argument that the trial

court erred in admitting State's Exhibit No.2, it did not conduct a harm analysis.

Under Texas Rule of Appellate Procedure 44.2(b), a non-constitutional error of the

trial court must be disregarded unless it affected "substantial rights." Because the

trial court erred in admitting the recording of Appellant's statements, the Court of

Appeals should have determined whether this error affected a substantial right of

Appellant.

2. Conclusion

The Court of Appeals' analysis of Appellant's sixth issue on appeal conflicts

with prior precedent of this Court. Its decision was also premised on at least one

inaccuracy and a misconstruction of the applicable rule.

Further, the Court of Appeals decided an important question of state law in a

way that conflicts with applicable decisions of this Court and appears to have

misconstrued a rule. Tex. Rule App. Proc. 66.3( c), (d).

Therefore, Appellant asks that this Court grant discretionary review, answer

the question presented in the affirmative, reverse the opinion and judgment of the

Court of Appeals, and remand this case back to the Court of Appeals to conduct an

analysis of the harm caused by this error.

Page 12
Question or Ground for Review: Does an appellate court err when it reviews a
trial court's denial of a timely and properly requested limiting instruction for
an abuse of discretion?

1. Law and Argument

Introduction

This question pertains to the trial court's failure to restrict State's Exhibit

No.2 to its proper scope and instruct the jury accordingly, which is the basis of the

seventh issue of Appellant's Brief to the Court of Appeals. (Appellant's Brief, pp.

92-96). Therefore, should this Court grant this petition for discretionary review on

this Question or Ground for Review, Appellant asks that this Court also consider

Appellant's arguments in Issue Seven of the direct appeal. Appellant will note at

the outset that, if this Court answers the first Question presented in this Petition for

Discretionary Review in the affirmative, then this Question will become moot.

Opinion of the Court of Appeals

The Court of Appeals reviewed Appellant's seventh issue on appeal under

an abuse-of-discretion standard. Lindberg at * 14. The court did not discuss or

analyze the arguments Appellant made in his brief in support of this issue but

overruled it along with Appellant's sixth issue. Id.

Standard of Review

The Court of Appeals erred in reviewing the trial court's ruling denying

Page l3
Appellant a limiting instruction for an abuse of discretion. This Court has made

clear that giving or refusing to give the jury a timely and properly requested

limiting instruction is not a matter within the trial court's discretion. Hammock v.

State, 46 S.W.3d 889,894 (Tex. Crim. App. 2001).

2. Conclusion

When evidence is admitted for a limited purpose, the trial court is required,

upon request, to restrict the evidence to its proper scope and instruct the jury

accordingly. Tex. R. Evid. 105(a). Whether to do so is not within the court's

discretion. Thus, the Court of Appeals erred in this case by reviewing the trial

court's ruling denying Appellant a limiting instruction for an abuse of discretion,

and this Court should grant Appellant's Petition on this ground for review, reverse

the opinion and judgment of the Court of Appeals, and remand this case back to

the Court of Appeals to review Appellant's seventh point of error under the proper

standard.

Further, the Court of Appeals decided an important question of state law in a

way that conflicts with the applicable decisions of this Court. Tex. Rule App. Proc.

66.3(c).

Therefore, Appellant asks that this Court grant discretionary review, answer

the question presented in the affirmative, reverse the opinion and judgment of the

Court of Appeals, and remand this case back to the Court of Appeals to review

Page 14
Appellant's seventh issue on appeal under the correct standard.

Page 15
Question or Ground for Review: Does a trial court err when it admits
evidence under the Rule of Optional Completeness without a limiting
instruction, if such an instruction is timely and properly requested?

1. Law and Argument

Introduction

This question also pertains to the trial court's failure to restrict State's

Exhibit No.2 to its proper scope and instruct the jury accordingly, which is the

basis of the seventh issue of Appellant's Brief to the Court of Appeals. (Appellant's

Brief, pp. 92-96). Therefore, should this Court grant this petition for discretionary

review on this Question or Ground for Review, Appellant asks that this Court also

consider Appellant's arguments in Issue Seven of the direct appeal. As is the case

with the preceding Question/Ground for Review, if this Court answers the first

Question presented in this Petition for Discretionary Review in the affirmative,

then this Question will become moot.

Opinion of the Court of Appeals

The Court of Appeals did not discuss or analyze the arguments Appellant

made in his brief in support of this issue but overruled it along with Appellant's

sixth issue. Id. The only law the court cited in support of its disposition of this point

of error was Hoover v. State, an unpublished opinion in which the Third Court of

Appeals ruled that, when "evidence was admissible under rule 107 for all purposes,

Page 16
no limiting instruction was necessary at the time the evidence was introduced or in

the charge." No. 03-05-00641-CR, 2007 WL 619500, at *5 (Tex. App.-Austin Feb.

27,2007, no pet.) (not designated for publication).

If State's Exhibit 2 was admissible in its entirety, then it should
have been admitted with a limiting instruction because the
evidence was not admissible for all purposes.

The plain language of Rule 107 indicates that evidence admitted under the

rule is admissible for a limited purpose, that limited purpose being to make the part

of an act, declaration, conversation, writing or recorded statement that has been

given in evidence "fully understood or to explain the same". Therefore, when

evidence is admitted under Rule 107, the court is required, upon request, to restrict

the evidence to its proper scope and instruct the jury accordingly. Tex. R. Evid.

105(a). The Court of Appeals in Hoover reached a different conclusion; however,

its opinion in that case has no precedential value. Tex. R. App. Proc. 47.7(a).

2. Conclusion

When evidence is admitted under the Rule of Optional Completeness, it is

admitted for a limited purpose, namely to make the part of an act, declaration,

conversation, writing or recorded statement that has been given in evidence "fully

understood or to explain the same". Tex. R. Evid. 107. Therefore, when evidence is

admitted under Rule 107, the court is required, upon request, to restrict the

evidence to its proper scope and instruct the jury accordingly. Tex. R. Evid. 105(a).

Page 17
Thus, the trial court in this case erred by admitting State's Exhibit No. 2 in

evidence under the Rule of Optional Completeness without a limiting instruction,

and the Court of Appeals erred by overruling Appellant's seventh issue on appeal

and affirming the judgment of Appellant's conviction and sentence.

Further, the Court of Appeals misconstrued a rule and decided an important

question of state and federal law that has not been, but should be, settled by this

Court. Tex. Rule App. Proc. 66.3(b ), (d).

Therefore, Appellant asks that this Court grant discretionary review, answer

the question presented in the affirmative, reverse the opinion and judgment of the

Court of Appeals, and remand this case back to the Court of Appeals for a harm

analysis.

Page 18
Question or Ground for Review: Does a trial court abuse its discretion when it
allows an expert witness to testify generally, over objection, about "rolling"
disclosures and what happens in other cases without a showing that her
testimony is sufficiently tied to the facts of the case to aid the jury in resolving
a factual dispute, when the expert witness makes no effort to tie her testimony
to pertinent facts of the case?

1. Law and Argument

Introduction

This question pertains to the admissibility of Carrie Paschall's testimony

about "rolling" disclosures and what happens in other cases, which is the fifth issue

of Appellant's Brief to the Court of Appeals, and in which Appellant argued that

the trial court committed reversible error when it allowed Carrie Paschall to testify

about "rolling" disclosures and other cases. (Appellant's Brief, pp. 67-78).

Therefore, should this Court grant this petition for discretionary review on this

Question or Ground for Review, Appellant asks that this Court also consider

Appellant's arguments in Issue Five of his appeal.

Testimony of Carrie Paschall

At trial, over Appellant's objections, Carrie Paschall was allowed to testify
as follows:

A rolling disclosure is when a child makes the decision to tell
about something that has happened to them or has been happening to
them. And what we see with a lot of children is ...

. . . They oftentimes will tell the first person that they tell. They
may tell a small portion of what happened to them. And the reason

Page 19
 that they do that is they're gauging reactions, am I being believed, am
I being protected, am I being listened to, am I being blamed, all of
those things.

As they feel safe and protected, then they may disclose more
information the next time that they talk to somebody. And we kind of
see that pattern taking place throughout the course of the investigation
sometimes and sometimes throughout the course of the lifetime. And
we can see that happen in very small amounts of time or very lengthy
amounts of time as well.

What I've seen in my experience is sometimes children will tell
about something that happened to them, and as they grow older and
gain more sexual knowledge, more self-awareness, sometimes
embarrassment, shame, guilt set in, and it's harder to talk about those
things that initially when they disclosed them, they didn't understand
the full ramifications of what had happened to them.

And so sometimes we can see kids pull back a little bit on what
they're saying for those reasons. They start to understand things a little
more.

(RR003, 96-98).

Opinion of the Court of Appeals

In its opinion, the Court of Appeals agreed with the State's argument that

Paschall's testimony was properly admitted expert testimony. Lindberg at * 13. The

Court of Appeals said this evidence "was expert testimony regarding behaviors

commonly exhibited by children who have suffered sexual abuse," that "it is not

objectionable on the grounds that it bolstered the credibility of Girl," and that it "was

directly relevant to the fact that Girl, after having told three people that Lindberg had

Page 20
placed his 'tee-tee' in her 'butt,' later said that Lindberg had not placed his penis

anywhere on her person but in her mouth." Id. The Court held that the trial court did

not abuse its discretion by allowing Paschall to testify regarding rolling disclosures

and overruled Appellant's fifth issue. Id at *13-14 (citations omitted).

Paschall's testimony was not relevant under Tex. R. Evid. 401.

Evidence is relevant if it has "any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence." Tex. R. Evid. 401. When the

evidence offered is the opinion testimony of an "expert" witness, the relevance

requirement is met if the expert testimony is "sufficiently tied to the facts of the

case that it will aid the jury in resolving a factual dispute." Exxon Pipeline Co. v.

Zwahr, 88 S.W.3d 623, 629 (Tex. 2002) (internal quotations and citations omitted).

Here, the record does not support the Court of Appeals' determination that

Paschall's testimony was relevant because neither the State nor Paschall tied her

testimony to the facts of this case. For an expert's testimony to be relevant, the

expert (not the court) must make an effort to tie pertinent facts of the case to the

scientific principles that are the subject of her testimony. Jordan v. State, 928

S.W.2d 550, 555 (Tex. Crim. App. 1996). Because Paschall did not do that in this

case, her testimony about "rolling" disclosures should not have been allowed. See

Williams v. State, 895 S.W.2d 363, 366 (Tex. Crim. App. 1994) (clinical

Page 21
psychologist's testimony was not helpful to the jury because he "did not

specifically apply his psychological profile testimony to actual characteristics

possessed by appellant" and "did not connect his generic testimony ... to the facts

of the case"); Salazar v. State, 127 S.W.3d 355, 360 (Tex. App.-Houston [14th

Dist.] 2004, pet. ref'd) (Where expert witness's testimony was explicitly offered

solely as "educational material" for the jury to use in assessing the complainants'

credibility, it was not sufficiently tied to the facts of the case and thus was not

relevant.).

Paschall's testimony was inadmissible under Tex. R. Evid. 403.

By reason of the foregoing, Carrie Paschall's testimony about rolling

disclosures should have been excluded from evidence under Tex. R. Evid. 403,

which provides: "Although relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence." Here, the trial court abused its discretion in

allowing Carrie Paschall to testify about "rolling" disclosures and what happens in

other cases because the testimony posed a substantial risk of unfair prejudice to

Appellant and misleading the jury, which substantially outweighed whatever

probative value the evidence had.

In reviewing a trial court's decision to admit or exclude evidence under Rule

Page 22
403 for abuse of discretion, an appeliate court must: (1) decide whether the trial

judge did in fact conduct the required balancing and "did not simply rule arbitrarily

or capriciously," and (2) "measure the trial court's ruling against the relevant

criteria by which a Rule 403 decision is to be made." Montgomery v. State, 810

S.W.2d 387, 392 (Tex. Crim. App. 1991) (Op. on Reh'g). The Court of Appeals'

opinion in this case contains no such analysis, even though Appellant made a

timely Rule 403 objection (in addition to his Rule 401 objection) to Carrie

Paschall's testimony at trial and based his fifth issue on appeal on both Tex. R.

Evid. 401 and 403. (See RR003, 96-97; Appellant's Brief, pp. 73-76). Rather, the

Court held that the trial court did not abuse its discretion and overruled Appellant's

fifth issue without conducting the requisite analysis prescribed by this Court in

Montgomery. Lindberg at *13-14.

When undertaking a Rule 403 analysis, a trial court must balance (1) the

inherent probative force of the proffered item of evidence along with (2) the

proponent's need for that evidence against (3) any tendency of the evidence to

suggest decision on an improper basis, (4) any tendency of the evidence to confuse

or distract the jury from the main issues, (5) any tendency of the evidence to be

given undue weight by a jury that has not been equipped to evaluate the probative

force of the evidence, and (6) the likelihood that presentation of the evidence will

consume an inordinate amount of time or merely repeat evidence already admitted.

Page 23
Gigliobianco v. State, 210 S.W.3d 637,641-42 (Tex. Crim. App. 2006).

A proper and thorough review of the trial court's ruling would have shown

that it was indeed an abuse of discretion. As explained supra, Paschall's testimony

was not helpful to the jury, and therefore its inherent probative force was weak if

not zero. The State did not demonstrate a compelling need for the evidence. Her

testimony was unfairly prejudicial because it had "an undue tendency to suggest

that a decision be made on an improper basis." Montgomery, 810 S.W.2d at 389. It

also had a strong tendency to be given undue weight by the jury and thereby

mislead the jury. See Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007).

Paschall's testimony was presented as that of an "expert" witness with hundreds of

hours of training and experience who had spoken extensively on the subject of

forensic interviews and been recognized as an expert in district court in the field of

forensic interviews. (RR3, 9, 87-90). Courts, including this Court, have recognized

the tendency of this particular kind of evidence to be given undue weight by a jury

that has not been equipped to evaluate the probative force of the evidence. See,

e.g., Gigliobianco, 210 S.W.3d at 641 ("For example, 'scientific' evidence might

mislead a jury that is not properly equipped to judge the probative force of the

evidence.") (citation omitted); Salazar, supra.

This erroneously admitted evidence did not consume much time, though

arguably any amount of time spent developing inadmissible evidence is

Page 24
"inordinate", and the State's use of this testimony to bolster Girl's testimony and

the testimony of other witnesses about her out-of-court statements was tantamount

to repeating evidence already admitted. Considering all the relevant criteria, the

record in this case reveals a risk that the probative value of the evidence is

substantially outweighed by unfair prejudice and misleading the jury, mandating

the conclusion that the trial court acted irrationally in failing to exclude it and thus

abused its discretion. Montgomery, 810 S.W.2d at 392-93.

The Court of Appeals did not conduct a harm analysis.

Because the Court of Appeals rejected Appellant's argument that the trial

court erred by allowing Carrie Paschall to testify about rolling disclosures and

other cases, it did not conduct a harm analysis. Under Texas Rule of Appellate

Procedure 44.2(b), a non-constitutional error of the trial court must be disregarded

unless it affected "substantial rights." Because the trial court erred in admitting the

testimony of Carrie Paschall, the Court of Appeals should have determined

whether this error affected a substantial right of Appellant.

2. Conclusion

Carrie Paschall's testimony was not helpful to the jury because it was not

sufficiently tied to the facts of this case to aid the jury in resolving any factual

dispute. Paschall failed to tie pertinent facts of the case to the scientific principles

that were the subject of her testimony, and therefore, her testimony was not

Page 25
relevant and should have been excluded. In addition, her testimony should have

been excluded under Tex. R. Evid. 403 because its probative value (if any) was

substantially outweighed by the dangers of unfair prejudice and misleading the

jury. The trial court erred in allowing the testimony, and the Court of Appeals

erred by overruling Appellant's fifth point of error based on a relevancy

determination that was not supported by the record.

Further, the Court of Appeals' decision conflicts with another court of

appeals' decision on the same issue, and the Court of Appeals decided an

important question of state law in a way that conflicts with the applicable decisions

of this Court. See Tex. R. App. Proc. 66.3.

Therefore, Appellant asks that this Court grant discretionary review, answer

the question presented in the affirmative, reverse the opinion and judgment of the

Court of Appeals, and remand this case back to the Court of Appeals for a harm

analysis.

Page 26
Question or Ground for Review: Are any and all statements made by a patient
to a sexual assault nurse examiner (SANE) during the SANE's examination of
the patient admissible to prove the truth of the matter(s) asserted under Texas
Rule of Evidence 803( 4)?

1. Law and Argument

Introduction

This question pertains to hearsay statements made by the child complainant

in this case to Nurse Brenda Crawford, the admissibility of which is addressed in

the third issue of Appellant's Brief to the Court of Appeals, and in which Appellant

argued that trial court erred reversibly by admitting hearsay in evidence through

the testimony of Brenda Crawford. (Appellant's Brief, pp. 52-60). Therefore,

should this Court grant this petition for discretionary review on this Question or

Ground for Review, Appellant asks that this Court also consider Appellant's

arguments in Part C of Issue Three of the direct appeal regarding the hearsay

testimony of Nurse Crawford.

Opinion of the Court of Appeals

After quoting Tex. R. Evid. 803(4)4 and explaining the basis of this

exception to the hearsay rule, the Court of Appeals summarily dealt with

Appellant's argument that the child complainant's out-of-court statements to Nurse

4 Tex. R. Evid. 803(4) provides that statements "made for purposes of medical diagnosis or
treatment and describing medical history, or past or present symptoms, pain, or sensations, or the
inception or general character of the cause or external source thereof insofar as reasonably
pertinent to diagnosis or treatment" are not excluded by the hearsay rule.

Page 27
Crawford were hearsay not within any exception as follows:

Here, Crawford specifically testified to what Girl told her
during Crawford's sexual assault examination of Girl. Crawford's
testimony fell under the well-established exception to the
inadmissibility of hearsay found in Rule 803(4). See Bautista, 189
S.W.3d at 369 (listing a multitude of Texas appellate decisions
upholding this well-established exception to hearsay and the
circumstances in which it might apply). We overrule Lindberg's third
Issue.

Lindberg at * 12. The Court of Appeals overruled Appellant's third issue on direct

appeal without conducting a harm analysis.

For Girl's statements to Nurse Crawford to be admissible under the
"purposes of medical diagnosis or treatment" exception, the State had to show
that Girl was aware that the statements were made for that purpose and that
proper diagnosis or treatment depends upon the veracity of such statements.

The Court of Appeals' implicit finding that, just because the statements about

which Crawford testified were said to her during her sexual assault examination of

the child complainant, this hearsay testimony "fell under the well-established

exception to the inadmissibility of hearsay found in Rule 803(4)," flies in the face of

this Court's opinion in Taylor v. State, in which it said that, for hearsay to be

admissible under the "purposes of medical diagnosis or treatment" exception, the

proponent of the evidence must show that the out-of-court declarant was aware that

the statements were made for that purpose and that proper diagnosis or treatment

depends upon the veracity of such statements. 268 S.W.3d 571, 588-89 (Tex. Crim.

App. 2008) (footnote omitted). At issue in Taylor was the admissibility of a licensed

Page 28
professional counselor's testimony that relayed what the complaining witness, J.B.,

had told her in therapy sessions. Id. at 574. This Court concluded that the trial court

abused its discretion to admit the counselor's testimony of J.B.'s out-of-court

declarations, "at least to the extent that they identified the appellant as the

perpetrator," reasoning: "It is not readily apparent that knowing the appellant's

identity was pertinent to [the counselor],s treatment of J.B. for the trauma of the

sexual assault, and it seems unlikely to have aided [the counselor] in any material

way in treating the residual anger issues that J.B. had with her mother." Id. at 592.

Similarly, in the instant case, knowing the identity of whoever sexually assaulted the

child complainant was not in any way pertinent to Nurse Crawford's treatment of her

for the trauma of sexual assault, and nothing in the record supports a finding that the

child's statements about what Appellant did to her aided Crawford in any material

way in her diagnosis or treatment of the child complainant. In fact, since her

examination found absolutely no physical injuries or other problems - no injuries to

the child's anus or sexual organ, no tears, anal spasm, anal laxity, no lesions, no

presence of stool in the rectal ampulla or discharge - and the complainant tested

negative for HIV, syphilis, gonorrhea and Chlamydia, the statements were not

"reasonably pertinent to diagnosis or treatment" because there was nothing wrong

with the child complainant that Nurse Crawford was qualified or equipped to treat. If

the complainant was suffering some psychological damage or other mental health

Page 29
issues as a result of what she said "TJ." did to her, then at least some of her

statements to Nurse Crawford would be reasonably pertinent to diagnosis or

treatment if made to a therapist, psychiatrist or other mental health professional, but

according to Nurse Crawford's own testimony, her "job is to make sure that [the

patient's] body is healthy," not to make sure that the patient's mind is healthy. The

State failed to lay the predicate for the admissibility of this hearsay under Rule

803(4). Per this Court's directive in Taylor, an appellate court should not presume

the establishment of predicate facts that the State failed to prove up "without

effectively relieving the proponent of the hearsay evidence (here, the State) of its

burden to establish the existence of a valid exception to the hearsay rule." 268

S.W.3d at 592.

Separate and apart from the reasonable pertinence issue is the question of

whether Girl was aware that proper diagnosis or treatment depended upon the

veracity of her statements to Nurse Crawford. "Absent such an awareness on the

declarant's part," this Court "cannot be sure that the self-interested motive to tell the

truth, making such statements sufficiently trustworthy to overcome a hearsay

objection, is present." Taylor at 589. Although Nurse Crawford testified that she

"explain[ed] to the child that the whole purpose for them being there and being

honest with me is for the sole purpose of medical treatment and diagnosis," there

was no showing that Girl understood or appreciated this. The Second Court of

Page 30
Appeals has even recognized that, when "very young children are responsible for

relating information to their healthcare provider," the presumption of reliability that

forms the basis for Rule 803(4) "may break down if they do not understand the

importance of being truthful," Beheler v. State, 3 S.W.3d 182, 188 (Tex. App.-Fort

Worth 1999, pet. ref'd) (citing Floyd v. State, 959 S.W.2d 706, 712 (Tex. App.--

Fort Worth 1998, no pet.)), and in Taylor, this Court took note of the decisions of

other Courts of Appeals that have "held out-of-court statements from child-victims

to be inadmissible under Rule 803(4) because there was no reason to believe that

the child would (or even could) have appreciated that the purpose of the statement

was to facilitate diagnosis or treatment." See 268 S.W.3d at 585 n. 70, and cases

cited therein.

The Court of Appeals did not conduct a harm analysis.

The admission of otherwise inadmissible hearsay "is not of constitutional

dimension." Taylor, 268 S.W.3d at 592. Therefore, the trial court's error In

admitting this hearsay in evidence must be disregarded unless it affected

Appellant's substantial rights. Tex. Rule App. Proc. 44.2(b). The panel below did

not analyze whether the trial court's error in admitting this hearsay testimony

affected Appellant's substantial rights. See Lindberg at * 12.

2. Conclusion

The statements Nurse Crawford testified the child complainant made to her

Page 31
are rank hearsay, and the State failed to show that the statements were admissible

under an exception to the hearsay rule. Thus, the trial court abused its discretion

when it allowed Nurse Crawford to testify to the statements, and the Court of

Appeals erred in ruling that "Crawford's testimony fell under the well-established

exception to the inadmissibility of hearsay found in Rule 803(4)" simply because

"Crawford specifically testified to what Girl told her during Crawford's sexual

assault examination of Girl." As a result, the Court of Appeals erred by overruling

Appellant's third issue on appeal and affirming the judgment of the trial court.

Further, the Court of Appeals decided an important question of state law in a

way that conflicts with the applicable decisions of this Court and appears to have

misconstrued a rule. Tex. Rule App. Proc. 66.3( c), (d). Therefore, Appellant asks

that this Court grant discretionary review, answer the question presented in the

affirmative, reverse the opinion and judgment of the Court of Appeals, and remand

this case back to the Court of Appeals for a harm analysis.

Page 32
Question or Ground for Review: Under the Jackson v. Virginia standard, are
a complainant's uncorroborated, unsworn out-of-court statements legally
sufficient evidence of guilt when those statements are contradicted by the
complainant's sworn testimony at trial, and the State and defense stipulate
that the complainant admitted the actus reus of the charged offense never
happened?

1. Law and Argument

Introduction

This question pertains to the sufficiency of the evidence to support

Appellant's conviction, which is challenged in the first issue of Appellant's Brief to

the Court of Appeals. (Appellant's Brief, pp. 22-32). Therefore, should this Court

grant this petition for discretionary review on this Question or Ground for Review,

Appellant asks that this Court also consider Appellant's arguments in Issue One of

the direct appeal.

The Evidence

To prove Appellant committed the offense of aggravated sexual assault of a

child under 14 years of age as charged in Count Two of the Indictment, the State

had to produce enough evidence to convince a rational trier of fact that Appellant

intentionally or knowingly caused the anus of the complainant to contact his penis

beyond a reasonable doubt. Tex. Penal Code Ann. § 22.021(a)(1)(B) (West Supp.

2015); (CR, 5, 43); Jackson v. Virginia, 443 U.S. 307, 313 (1979). The only proof

of this allegation at trial was the hearsay of the child complainant, admitted in

Page 33
evidence through State's Exhibit No. 2 and the testimony of the child's mother and

Nurse Crawford. (RR003, 28-29, 71-72; RR006, State's Ex. 2). Girl testified

unequivocally at trial that TJ. did not try to touch her with his private part, that he

put his private part in her mouth and that he did not put his private part anywhere

else on her body. (RR3, 48-50, 53). The State and defense also stipulated that Girl

"met with [the prosecutors] on November 23rd, 2013," and that, during this

meeting, "she said that the Defendant's penis did not contact her anus." (RR003,

124). No eyewitness testimony, physical evidence or other corroborating evidence

that Appellant caused Girl's anus to contact his penis was produced at trial.

Opinion of the Court of Appeals

In its legal-sufficiency review, the Court of Appeals focused on Girl's out-

of-court statements, introduced through the testimony of her Mother and Nurse

Crawford and the video of the forensic interview, to the exclusion of the other

evidence admitted at trial. Lindberg at *7-8. In so doing, the Court deviated from

the standard pronounced by the U.S. Supreme Court in Jackson v. Virginia, which

requires a reviewing court to consider "all of the evidence" when conducting a

legal-sufficiency review. 443 U.S. 307, 319 (1979) (footnote omitted) (emphasis in

original). The Court of Appeals' analysis of Appellant's first and eighth' points of

5 In his eighth point of error on appeal, Appellant argued that the trial court erred by overruling
Appellant's objection to the Jury Charge on Count Two of the Indictment and submitting the
Charge on both counts to the jury. (Appellant's Brief, pp. 97-98).

Page 34
error contains no mention of the stipulation or of the child complainant's sworn

testimony at trial that Appellant did not try to touch her with his private part and

that he did not put his private part anywhere else on her body besides her mouth.

Citing to its own decision in Kimberlin v. State, 877 S.W.2d 828, 831-32

(Tex. App.-Fort Worth 1994, writ ref d), the Court of Appeals said that "a child

complainant's outcry statement alone can be sufficient to support a conviction for

aggravated sexual assault." Lindberg at *7. The Court found that the State

introduced evidence, by way of Girl's mother, Nurse Crawford and a video of

Paschall's forensic interview, that Girl had reported that Lindberg put his "tee-tee"

in her "butt" after having applied lotion to his penis and that the "evidence from

these three sources also demonstrated that Lindberg's actions hurt Girl." Id. at *8.

Based on this and Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet.

ref'd), cert. denied, 538 U.S. 963 (2003), the Court of Appeals held "that a rational

factfinder could have found the essential elements as alleged in count two of the

State's indictment." Id.

The evidence in this case was and is legally insufficient under the Jackson
standard to support Appellant's conviction on Count Two of the Indictment.

Federal due process requires that the State prove every element of the crime

charged beyond a reasonable doubt. Jackson, supra. The level of proof sufficient to

support a criminal conviction is "evidence necessary to convince a trier of fact

beyond a reasonable doubt of the existence of every element of the offense." Id. at

Page 35
316.

Appellant does not ask this Court to overrule Kimberlin or Tear, on which

the Court of Appeals relied in this case. However, neither Kimberlin nor Tear

involved a situation where part of a child complainant's outcry statements were

directly contradicted by the complainant's testimony at trial and the complainant

admitted that the actus reus of the charged offense never happened. In fact, in

ruling that an outcry witness's testimony alone was sufficient evidence to support

the defendant's guilt, the Tear court noted that "there is no contradictory

evidence," Tear v. State, 74 S.W.3d at 561 (citing Kimberlin, 877 S.W.2d at 828),

and Kimberlin actually supports Appellant's argument here. In Kimberlin, the

defendant was convicted by a jury of the offense of aggravated sexual assault of a

child based on contact between her mouth and the victim's sexual organ. 877

S.W.2d at 829-31. The victim did not mention any such oral contact in her

testimony at trial but did not testify that there was no oral contact either. Id. at 830-

31. The State relied on the outcry testimony of the victim's mother, who testified

that the victim "said that at one time [Kimberlin] went to the frigerator and got

sauce and put it on her eyes and her mouth and her toto and that [the defendants]

licked the sauce off her eyes and mouth and toto .... " Id. at 830, 832. This

differed from the victim's outcry as transcribed by her mother, which did not

allege any oral-genital contact between the victim and Kimberlin. Id. at 830. The

Page 36
Court of Appeals held that the evidence was insufficient to support a conviction on

the charged offense and reversed the judgment of the trial court, reasoning:

By way of analogy, consider a murder trial where the only evidence is
the testimony of one witness. That witness testifies both that: (l) the
defendant did murder the victim, and (2) the defendant did not murder
the victim. No explanation of, or choice between, the inconsistent
testimony is made. Are we to confirm the jury's apparent coin-flip
decision, when any rational trier of fact could not have believed one
version of the story over the other beyond a reasonable doubt? The
case here is even stronger for reversal than this hypothetical.

Id. at 833. In the instant case, the child complainant did not testify to any anal-

penile contact between her and defendant-rather, she explicitly testified that there

was no such contact-but the jury heard evidence that she had previously claimed

Appellant put his "tee-tee" in her "butt" and also that she expressly denied that his

penis contacted her anus. This record compels the same conclusion that the Court

of Appeals reached in Kimberlin.

In Fernandez v. State, the First Court of Appeals reviewed the sufficiency of

the evidence in a case where the only evidence implicating the defendant was the

hearsay testimony of a police officer and the complainant and concluded: "As a

matter of law, unsworn, out-of-court hearsay alone cannot support a finding of

guilt beyond a reasonable doubt when unequivocally recanted in court by the

declarant." 755 S.W.2d 220, 221-22 (Tex. App.-Houston [1 Dist.] 1988). This

Court disagreed with that conclusion and reversed the decision of the Court of

Appeals. Fernandez v. State, 805 S.W.2d 451, 455-56 (Tex. Crim. App. 1991) (en

Page 37
bane). That case is not controlling on the issue presented here, however, for a

number of reasons. First, the hearsay at issue in Fernandez was corroborated by

other evidence and was not the only evidence of guilt. Id. at 453. Second, there was

no stipulation in that case that the declarant admitted that the charged conduct did

not occur. Third, this Court did not decide the question or ground for review

presented here but focused its opinion on the appellate court's error in excluding

the hearsay testimony from its sufficiency review because it believed the probative

value of the unobjected-to hearsay was completely undermined by the declarant's

in-court testimony. Id. at 453-56. By creating this exception to the rule that

unobjected-to hearsay has probative value as substantive evidence, the Court of

Appeals in Fernandez "contravened the policy behind the adoption of Rule 802."

Id. at 455. This rule is inapplicable here, as all the hearsay inculpating Appellant in

this case was objected to at trial. Thus, Fernandez is inapposite.

The evidence in this case calls to mind the hypothetical posed by then-

Presiding Judge McCormick in his dissenting opinion in Johnson v. State, which

this Court subsequently used to illustrate "a proper application of the Jackson v.

Virginia legal-sufficiency standard" in Brooks v. State, 323 S.W.3d 893 (Tex.

Crim. App. 2010):

[In] a robbery of a convenience store case[, t]he store clerk at trial
identifies A as the robber. A properly authenticated surveillance
videotape of the event clearly shows that B committed the robbery.
But, the jury convicts A. It was within the jury's prerogative to believe

Page 38
 the convenience store clerk and disregard the video. But based on all
the evidence the jury's finding of guilt is not a rational finding.

23 S.W.3d 1, 15 (Tex. Crim. App. 2000) (McCormick, P.J., dissenting), overruled

by Brooks. In the instant case, it was within the jury's prerogative to believe that

Girl's out-of-court statements accusing Appellant of putting his "tee-tee" in her

"butt" were true and disregard her sworn testimony at trial and the joint stipulation,

but based on all the evidence, the jury's finding of guilt on Count Two is not a

rational finding.

2. Conclusion

Considering all of the evidence in the light most favorable to the

prosecution, no rational trier of fact could have found Appellant committed the

offense of aggravated sexual assault of a child under 14 years of age as charged in

Count Two of the Indictment beyond a reasonable doubt. The only evidence that

Appellant caused Girl's anus to contact his penis was unsworn, uncorroborated

hearsay that was directly contradicted by the child's unimpeached testimony at trial

and an express recantation that was stipulated to by the State and defense.

Therefore, the Court of Appeals erred by overruling Appellant's first and eighth

issues on appeal and affirming the judgment of the trial court.

Further, the Court of Appeals decided an important question of state and

federal law that has not been, but should be, settled by this Court, and the Court of

Appeals decided an important question of state and federal law in a way that

Page 39
conflicts with the applicable decisions of this Court and the Supreme Court of the

United States. See Tex. R. App. Proc. 66.3(b ), (c).

Therefore, Appellant asks that this Court grant discretionary review, answer

the question presented in the affirmative, reverse the opinion and judgment of the

Court of Appeals, and either enter a judgment of acquittal on Count Two or

remand this case back to the Court of Appeals to enter such a judgment. See Tex.

Rule App. Proc. 43.2(c); Tibbs v. Florida, 457 U.S. 31, 41 (1982) (citations

omitted).

Page 40
 IX. Conclusion and Prayer

For the above and forgoing reasons, Appellant respectfully prays that the

Court of Criminal Appeals grant discretionary review, find that the Court of

Appeals erred, and either remand this case back to the lower court for proceedings

consistent with the judgment of this Court or render a decision and judgment as

requested in this petition.

Respectfully submitted,

The Salvant Law Firm, PC
610 E. Weatherford
Fort Worth, Texas 76102
Phone: (817) 334-7997
Fax: (817)334-7998
/S/ Brian Salvant
By: _
Brian Salvant
Texas Bar No. 24008387
E-mail: brian@salvanJl!!:.yfirm.com
Attorney for Appellant
/S/ Adam L. Arrington
By: _
Adam L. Arrington
State Bar of Texas No. 24085685
E-mail: Adam(il).salvantlawfirm.com
Attorney for Appellant

Page 41
 x. Certificate of Service

This is to certify that on November 20, 2015, in accordance with Texas
Rules of Appellate Procedure 9.5 and 68.11, a true and correct copy of the above
and foregoing document was served on the District Attorney's Office, Tarrant
County, Appellate Division, Debra Ann Windsor, 401 W. Belknap, Fort Worth,
Texas 76196, by USPS FIRST CLASS MAIL, and on the State Prosecuting
Attorney, P.O. Box 13046, Capitol Station, Austin, Texas 78711-3046, by USPS
FIRST CLASS MAIL.

/S/

BRIAN SALVANT

XI. Certificate of Compliance with Rule 9.4

Using the word-count feature of Microsoft Word, the undersigned certifies
that this document contains 9,317 words in the following sections: the Questions or
Grounds for Review (VII), Argument (VIII) and Conclusion and Prayer (VI). The
word count provided in this Certificate of Compliance excludes the parts of the
document exempted by Texas Rule of Appellate Procedure 9.4, which are the
caption, identity of parties and counsel, statement regarding oral argument,
statement of issues presented, statement of jurisdiction, statement of procedural
history, signature, proof of service, certification, certificate of compliance, and
appendix. This document also complies with the typeface requirements of Texas
Rule of Appellate Procedure 9.4( e) because it has been prepared in a
proportionally-spaced typeface using Microsoft Word in 14-point Times New
Roman.

/S/

BRIAN SALVANT

Page 42
APPENDIX

Page 43
 COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-14-00071-CR

TIMOTHY JAMES LINDBERG APPELLANT

v.
THE STATE OF TEXAS STATE

FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1255906D

MEMORANDUM OPINION1

I. INTRODUCTION

A jury found Appellant Timothy James Lindberg guilty of two counts of

aggravated sexual assault of a child under fourteen and found in a special issue

that the child was younger than six years of age. The trial court then assessed

punishment at thirty-eight years' imprisonment. In nine issues, Lindberg argues

1 See Tex. R. App. P. 47.4.
that the evidence is insufficient to support his convictions, that the trial court

abused its discretion several times through the admission of evidence, and that

the trial court erred during voir dire. We will affirm.

II. BACKGROUND

A few months after Girl2 was born, her Mother met Stacey through a

Craigslist ad. Stacey agreed to babysit Girl, and the two women later became

close friends. Stacey lived with Lindberg during the time she babysat Girl.

Stacey and Lindberg have three children of their own, one of whom is four

months older than Girl. During her first few years, Girl was at Stacey and

Lindberg's house frequently. Girl even called Lindberg "T.J." or "Daddy." By the

summer of 2011, however, when Girl had reached the age of four, she was going

to the couple's house only occasionally.

On June 25, 2011, a Saturday night, Mother and Girl were eating at a

restaurant with other family members. According to Mother, Girl announced to

everyone present that when she was at Stacey's house the prior week, "T.J. put

his tee-tee in [her] mouth." Mother testified that her first reaction was to explain

to Girl that it was inappropriate to say such things, to which Girl allegedly replied,

"Mommy, he really did for real. He put his tee-tee in my mouth." Mother said

that everyone at the table appeared shocked by Girl's statement.

2We have used a pseudonym for the complainant and other parties where
possible in an effort to protect the complainant's privacy.

2
 After hearing Girl's statement, Mother said that she immediately went

outside, called Stacey, and told her what Girl had said. By Mother's account,

Stacey asked Mother to come over to discuss Girl's statement. Mother said that

the two got in the car and began to drive to Stacey's house. But as they were

driving and as Mother inquired further, Girl told Mother that she and Lindberg had

been in the bathroom together, that he had put lotion on his penis, that he had

put his penis in her "bottom," and that it had "hurt." Mother said that Girl even

drew a penis shape in the air with her finger when asked what Lindberg's penis

looked like. Mother decided to head home instead of proceeding to Stacey's

home.

Mother said that at that moment she was in shock and did not know what

to do. After Mother talked to others, she eventually called the police the following

Monday morning, June 27, 2011. After meeting with the police, Mother took Girl

to Alliance for Children, where child forensic interviewer Carrie Paschall

interviewed Girl. Shortly after, Mother took Girl to Cook Children's Hospital for a

physical examination by sexual assault nurse examiner Brenda Crawford.

Paschall testified that she interviewed Girl on June 29, 2011. Paschall

said that during her interview with Girl, she conducted "a truth-lie scenario" with

Girl in order to determine whether Girl knew "the truth versus a lie, right versus

wrong." Paschall averred that she also conducted a "screening phase, which is

where [she] used anatomical dolls to assess what [Girl] calls body parts and [to]

ask her if she had ever been touched in any way." Paschall testified that after

3
these phases, she conducted a detail-specific interview based on the answers

Girl gave her to the previous phases of the interview.

Paschall further answered the prosecutor's questions regarding the

concepts of "rolling" and "roll back" disclosures. During this portion of Paschall's

testimony, the following exchange occurred:

[Prosecutor]: What's a rolling disclosure?

[Paschall]: A rolling disclosure is when a child makes the decision
to tell about something that has happened to them or
has been happening to them. And what we see with a
lot of children is --

[Defense Counsel]: Objection, Your Honor. It's going into what
happens in other cases and such. It's improper.
401, 403 and 404.

THE COURT: That's overruled.

[Prosecutor]: You may continue.

[Paschall]: Okay. They oftentimes will tell the first person that they
tell. They may tell a small portion of what happened to
them. And the reason that they do that is they're
gauging reactions, am I being believed, am I being
protected, am I being listened to, am I being blamed, all
of those things.

As they feel safe and protected, then they may
disclose more information the next time that they talk to
somebody. And we kind of see that pattern taking place
throughout the course of the investigation sometimes
and sometimes throughout the course of the lifetime.
And we can see that happen in very small amounts of
time or very lengthy amounts of time as well.

[Prosecutor]: Do children sometimes roll back their disclosure?

[Paschall]: Yes.

4
 [Prosecutor]: And -- and what ways do you see that?

[Paschall]: I see them --

[Defense Counsel]: Again, Your Honor, this is totally improper as to
trying to put in what happens in other cases,
trying to suggest that the State's case should be
considered when there's no evidence otherwise
before the jury. And we object, Your Honor, that
it's a -- a backdoor way of trying to say, well, you
shouldn't believe the child except when she
does something for us, and I object.

THE COURT: That's overruled.

[Prosecutor]: You may continue.

[Paschall]: Could you ask the question again? I'm sorry.

[Prosecutor]: The question was: Why would a child roll back
disclosure?

[Defense Counsel]: Same objection.

THE COURT: Overruled.

[Paschall]: What I've seen in my experience is sometimes children
will tell about something that happened to them, and as
they grow older and gain more sexual knowledge, more
self-awareness, sometimes embarrassment, shame,
guilt set in, and it's harder to talk about those things that
initially when they disclosed them, they didn't
understand the full ramifications of what had happened
to them.

And so sometimes we can see kids pull back a
little bit on what they're saying for those reasons. They
start to understand things a little more.

A video recording of Paschall's forensic interview was admitted into

evidence at trial and played for the jury. In it, Girl can be heard stating that "T.J."

5
had put his penis in her mouth and that he had also pulled her pants down and

had put his penis in her "butt" when she was at Stacey's house. In the video, Girl

can be heard saying that when this occurred, Lindberg's penis was "sticking

straight." Girl can also be heard saying that Lindberg had put lotion on his penis

prior to putting his penis in her "butt." Girl can also be seen drawing a picture of

what Lindberg's penis looked like on a drawing board.

Crawford also testified at trial about her medical examination. By

Crawford's account, Girl's developmental level was on target for her age at the

time she reported the alleged incident. Crawford averred that Girl reported that

Lindberg had stuck his penis in her mouth. She also allegedly reported that he

had pulled her pants down and put his penis in her "butt" and that this caused

Girl pain. Crawford testified that she found no physical evidence regarding Girl's

allegations but that in her professional opinion, she would not have expected to

find such evidence given the time delay between when the alleged incident

occurred and when the examination happened-approximately six days.

Crawford testified that her "impression, based on the exam and what [Girl] told

[her], was sexual abuse, no anal/genital injuries noted."

Girl was seven years old at the time of trial. She said that when she was

four years old, she saw Lindberg's penis while she was in the bathroom with him

at Stacey's house. Girl also testified that Lindberg put water on his penis and

then put it in her mouth. Girl described Lindberg's penis as "tan" and "soft" and

6
said that nothing came out of it when these alleged events occurred. Girl

testified that Lindberg had not touched her anywhere else on her body.

After the State closed, both Lindberg and the State introduced a stipulation

to the jury that Girl, on November 23, 2013, had stated to two assistant district

attorneys that Lindberg had not caused his penis to contact her anus.

Stacey testified in Lindberg's defense. Stacey stated that Lindberg had

been home alone with some of their children and Girl when the alleged assaults

were reported to have happened. She stated, however, that she did not believe

Girl's outcries.

Lindberg testified at trial. He denied committing the offense but agreed

that he had the opportunity to be alone with Girl for multiple hours at the time the

alleged events occurred. Lindberg also said that he thought of Girl like his own

daughter and that he did not know why she had made these accusations about

him.

A jury found Lindberg guilty of two counts of aggravated sexual assault of

a child-count one alleging that Lindberg caused Girl's mouth to contact his

penis and count two alleging he caused Girl's anus to contact his penis. The jury

also found "true" the special issue that Girl was under six years of age at the time

of the offenses. The trial court assessed punishment at thirty-eight years'

confinement for each count, with the sentences to be served concurrently. This

appeal followed.

7
 III. DISCUSSION

A. Sufficiency of the Evidence

In his first and eighth issues, Lindberg argues that the evidence is

insufficient to support both counts of aggravated sexual assault. Specifically, in

his first and eighth issues, Lindberg argues that the State failed to present

evidence that he "intentionally or knowingly" committed aggravated sexual

assault. In his eighth issue, Lindberg argues that the trial court erred by denying

his motion for directed verdict on count two, which alleged that he caused Girl's

anus to contact his penis. We disagree.

1. Standard of Review and Aggravated Sexual Assault

In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307,319,99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170

(Tex. Crim. App. 2014). This standard gives full play to the responsibility of the

trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.

The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434

S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we

8
may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Grim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Grim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Grim. App.

2013). We must presume that the factfinder resolved any conflicting inferences

in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99

S. ci at 2793; Dobbs, 434 S.W.3d at 170.

We measure the sufficiency of the evidence by the elements of the offense

as defined by the hypothetically correct jury charge for the case, not the charge

actually given. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Grim. App. 2011) (citing

Malik v. State, 953 S.W.2d 234, 240 (Tex. Grim. App. 1997)); see Crabtree v.

State, 389 S.W.3d 820, 824 (Tex. Grim. App. 2012) ("The essential elements of

the crime are determined by state law."). Such a charge is one that accurately

sets out the law, is authorized by the indictment, does not unnecessarily restrict

the State's theories of liability, and adequately describes the particular offense for

which the defendant was tried. Byrd, 336 S.W.3d at 246. The law as authorized

by the indictment means the statutory elements of the charged offense as

modified by the factual details and legal theories contained in the charging

instrument. See Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Grim. App.

2013); see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Grim. App. 2014)

9
("When the State pleads a specific element of a penal offense that has statutory

alternatives for that element, the sufficiency of the evidence will be measured by

the element that was actually pleaded, and not any alternative statutory

elements.").

The testimony of a child victim alone may be sufficient to support a

conviction for aggravated sexual assault. Tex. Code Crim. Proc. Ann. art. 38.07

(West Supp. 2014); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002,

pet. ref'd), cert. denied, 538 U.S. 963 (2003). Furthermore, a child complainant's

outcry statement alone can be sufficient to support a conviction for aggravated

sexual assault. Kimberlin v. State, 877 S.W.2d 828, 831-32 (Tex. App.-Fort

Worth 1994, pet. ref'd) (citing Rodriguez v. State, 819 S.W.2d 871, 873 (Tex.

Crim. App. 1991)).

A person commits the offense of aggravated sexual assault of a child

when, as it applies to count one of the State's indictment in this case, he

intentionally or knowingly causes the penetration of the mouth of a child by the

sexual organ of the actor. Tex. Penal Code Ann. § 22.021 (a)(1 )(8)(ii) (West

2011). As to count two of the State's indictment, a person commits aggravated

sexual assault of a child if the person intentionally or knowingly causes his sexual

organ to contact the anus of a child younger than fourteen years of age. Id.

§ 22.021 (a)(1 )(8)(i), (a)(1 )(8)(iv), (a)(2)(8).

10
 2. Intent as to Counts One and Two

In determining the sufficiency of the evidence to show an appellant's intent,

and faced with a record that supports conflicting inferences, we "must presume-

even if it does not affirmatively appear in the record-that the trier of fact

resolved any such conflict in favor of the prosecution, and must defer to that

resolution." Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).

Further, a culpable mental state can be inferred from the acts, words, and

conduct of the accused. Marlin v. State, 246 S.W.3d 246, 263 (Tex. App.-

Houston [14th Dist.] 2007, no pet.). And there is no requirement for an oral

expression of intent-the conduct itself is sufficient to infer intent. Connell v.

State, 233 S.W.3d 460, 467 (Tex. App.-Fort Worth 2007, no pet.).

Here, viewing the evidence in a light most favorable to the jury's verdict, a

rational jury could have found that Lindberg intended to cause Girl's mouth to

contact his penis when, by her statements, he placed water on his penis and

then placed it in her mouth. Further circumstances supporting Lindberg's intent

include that no other adults were around when these events occurred and that

Girl reported that Lindberg's penis was "sticking straight" when he placed it in her

mouth. See Tear, 74 S.W.3d at 560 ("The testimony of a child victim alone is

sufficient to support a conviction for aggravated sexual assault."). Likewise, a

rational jury could have found the requisite intent regarding count two, that he

caused his sexual organ to contact Girl's anus, when, by her statements, he

placed lotion on his penis and put his penis in her "butt." Further circumstances

11
supporting Lindberg's intent are the child's report to Mother, Paschall, and

Crawford that it hurt when Lindberg had done this.

Moreover, regarding both counts, the State introduced evidence that Girl

said that "T.J" had done these things, that it was known that she referred to

Lindberg as "T.J.," and that Girl demonstrated the ability to twice draw Lindberg's

penis as well as describing its color.

Viewing all of the evidence in the light most favorable to the prosecution,

we hold that the evidence is sufficient to support the jury's determination that

Lindberg intended to commit both of the State's counts of aggravated sexual

assault. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.

3. Count Two

As to count two, Lindberg argues that the trial court erred by denying his

motion for directed verdict. Specifically, Lindberg argues that the "State offered

no real evidence" that he had caused Girl's anus to contact his penis. We

disagree.

The State introduced evidence, by way of Mother, Crawford, and a video of

Paschall's forensic interview, that Girl had reported that Lindberg put his "tee-tee"

in her "butt" after having applied lotion to his penis. See Tear, 74 S.W.3d at 560

("[A] child victim's outcry statement alone can be sufficient to support a conviction

for aggravated sexual assault."). The evidence from these three sources also

demonstrated that Lindberg's actions hurt Girl.

12
 We are mindful that Lindberg objects in later issues that these three

sources of evidence should not have been admitted; however, when conducting

a sufficiency of the evidence review, we must consider all the evidence admitted

at trial, even improperly admitted evidence. Winfrey v. State, 393 S.W.3d 763,

767 (Tex. Crim. App. 2013); Moff v. State, 131 S.W.3d 485, 489-90 (Tex. Crim.

App.2004).

Viewing the evidence in light most favorable to the jury's verdict, we hold

that a rational factfinder could have found the essential elements as alleged in

count two of the State's indictment. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793;

Dobbs, 434 S.W.3d at 170. We overrule Lindberg's first and eighth issues.

B. Challenges for Cause

In his second issue, Lindberg argues that the trial court erred by granting

the State's challenge for cause to Veniremember Number Fifty and by also

denying his chaJlenge for cause to Veniremember Number Twenty-Five. The

State counters that the trial court did not err by granting its challenge for cause to

Veniremember Number Fifty because the juror had shown bias or prejudice and

that the trial court did not err by denying Lindberg's challenge for cause to

Veniremember Number Twenty-Five because the juror had not demonstrated

that he would not follow the law. We agree with the State.

1. Voir Dire

During voir dire, the State discussed the "one-witness rule." Lee v. State,

206 S.W.3d 620, 621 (Tex. Crim. App. 2006). At the beginning of the discussion,

13
the State gave an example of a robbery in a deserted parking lot and then

explained,

It's called the one -- one-witness rule, that if one witness comes in
and testifies and test -- remember all those things -- we call them
elements, the on or about, reasonable, all that stuff, intentionally or
knowingly. If that one witness comes in and testifies to all those
elements and you believe that witness beyond a reasonable doubt,
what's your verdict?

After the State discussed this with the panel, Veniremember Number Fifty

asked, "What's to prevent me from saying that you were the person that

assaulted me in the parking lot just -- you know, you may have looked at me

wrong, you know, in the courtroom?" The State responded, "Well, I guess there's

nothing saying that -- stopping you from saying it." Then the following exchange

occurred:

[Veniremember Number Fifty]: Right.

[STATE]: In a jury trial, I'm hoping that through cross-examination,
direct testimony, the jury -- I'd be hoping the jury would
see that it's not proven beyond a reasonable doubt. You
see what I'm saying?

[Veniremember Number Fifty]: If I meet all the -- the qualifications
beyond a reasonable doubt, it could
still be not telling the truth.

[STATE]: Could be. But here's the question: If you believe a
witness beyond a reasonable doubt and it's only one
witness and it's proven it's -- the State's proven its case
beyond a reasonable doubt regarding each of the
elements of the offense through one witness, how would
you find the Defendant?

[Veniremember Number Fifty]: You still got human nature to take --

14
[STATE]: Yes.

[Veniremember Number Fifty]: -- into consideration, and it would
be hard to find a guilty verdict.

[STATE]: Right. I'd be hard, but would you do it? If you can't do it,
it's okay.

[Veniremember Number Fifty]: No.

[STATE]: Couldn't do it?

[Veniremember Number Fifty]: No, sir.

[STATE]: And I'm going to have to kind of backtrack a little bit. So
the State calls one witness, and through that one
witness, we've got testimony and you believe beyond a
reasonable doubt each element of the offense based on
that one witness' testimony, would you still find the
Defendant not guilty?

[Veniremember Number Fifty]: Yes.

[STATE]: Okay. Even though the Judge has instructed you that if
you believe beyond a reasonable doubt that the
Defendant's guilty--

[Veniremember Number Fifty]: Again, I pose my question, What's
to prevent someone from lying?

[STATE]: And so no matter -- you believe beyond a reasonable
doubt, but because only one witness testified, you'd still
find the Defendant not guilty?

[Veniremember Number Fifty]: Yes.

[STATE]: And so you're holding the State to a higher burden?

[Veniremember Number Fifty]: Yes.

[STATE]: Thank you, sir. I appreciate it.

15
 At another moment during the State's voir dire, Veniremember Number

Twenty-Five stated that he could not "leave [his] intuition at the door." The

following colloquy occurred:

[STATE]: Well, intuition may be a part here, because as a juror,
you may not feel -- you may have a feeling that this
person's lying. And if you think that, you can certainly
use that as part of your decision making as to whether or
not you believe everything they say, none of what they
say or part of what they say. Okay?

Because you're the judges of the facts. He's
wearing the robe; he's the judge of the law. When you're
sitting over here, you'll be the judge of the facts. Does
that make sense?

[Veniremember Number Twenty-Five]: Yes.

[STATE]: Am I doing an okay job here?

[Veniremember Number Twenty-Five]: Reasonable.

[STATE]: Reasonable. Don't pat me on the back too much.

So what's your question, sir?

[Veniremember Number Twenty-Five]: Well, I'm back to intuition
again, is when -- are jurors
allowed to use their
intuition? If so, when during
the process?

[STATE]: I would say this is the part right here. When that person
comes up here and takes the oath and starts giving you
answers, there could be a way in which they're talking
that you don't like and that you -- you think is lending
themselves to be untruthful; or you may see a way that
they're talking like this person's telling the truth. I mean,
we do that in interact -- social interactions every day,
don't we?

16
 Is that a yes or no?

[Veniremember Number Twenty-Five]: Well, I -- both visible and
sensed.

[STATE]: And I most certainly think you can do that whenever
you're listening to someone's testimony. Okay?

[Veniremember Number Twenty-Five]: I'm uneasy about it.

[STATE]: Well, I understand -- I can understand being uneasy
about it, but it will be your job. You'll be instructed that
you can believe everything somebody says, some of
what they say, none of what they -- or none of what they
say. That's going to be your job as a jury.

And because, you know, there may -- because the
child waited a long time, there may not be any physical
evidence. There may not -- there may not be DNA.
There may not be findings. It may just be testimony.
You see what I mean?

[Veniremember Number Twenty-Five]: Yes.

[STATE]: So do you have any issues now?

[Veniremember Number Twenty-Five]: No.

[STATE]: Okay. Thank you, sir.

Later, Lindberg questioned Veniremember Number Twenty-Five through

the following exchange:

[Defense Counsel]: And, [Veniremember Number Twenty-Five],
you had mentioned, you know, because you
were a father of -- of small children, that you
would have a problem sitting as a juror in this
kind of a case; is that correct?

[Veniremember Number Twenty-Five]: I think that after discussing it
with the State, what -- what
really, I think, was come to

17
 (sic) was if there are
moments we're supposed to
use intuition and balancing
the facts, that comes into
play, of course. If I feel like
a child's -- a kid -- if they're
not telling the truth, that
might -- that might change
the way I -- I view it. But I
don't feel, in general, that
children lie any more than
human -- adults.

[Defense Counsel]: Let me ask you about using intuition. What do
you mean by intuition? You just kind of say,
Well, yeah, I look at that person and they're a
truth-teller or, you know, just before they say a
word, or they're a liar, or what is intuition? I'm
not sure.

[Veniremember Number Twenty-Five]: Well, what is intuition or how
is that--

[Defense Counsel]: What is it?

[Veniremember Number Twenty-Five]: Well, I mean, it's a -- an
understanding of a situation
based on things that aren't
as tangible as pure facts.

[Defense Counsel]: So you would sort of resolve questions based
upon your emotions or your feelings about it?

[Veniremember Number Twenty-Five]: I believe that's what we're
being asked to do, yeah.

[Defense Counsel]: Okay. I appreciate it. Thank you, sir.

At the conclusion of voir dire, the State challenged Veniremember Number

Fifty for cause, arguing that he would hold the State to a higher burden than

required. The court granted the challenge for cause. Lindberg then asked for an

18
additional peremptory challenge "because the State has 11 strikes, and -- and we

only got 10." The court deferred ruling on the request, stating that it would

evaluate it at the "conclusion of the strikes."

Later, Lindberg challenged Veniremember Number Twenty-Five for cause,

arguing that the veniremember had "said that he had small children and it would

affect him in how he decides the cases and, in fact, he would use intuition to fill in

the gaps for evidence." The court denied the challenge.

2. Standard of Review

We review a trial court's ruling on a challenge for cause with considerable

deference because the trial court is in the best position to evaluate the

veniremember's demeanor and responses. Newbury v. State, 135 S.W.3d 22,

32 (Tex. Grim. App.), cert. denied, 543 U.S. 990 (2004); Tucker v. State, 183

S.W.3d 501, 511 (Tex. App.-Fort Worth 2005, no pet.). We reverse a trial

court's ruling on a challenge for cause only upon a clear abuse of discretion.

Newbury, 135 S.W.3d at 32; Curry v. State, 910 S.W.2d 490, 493 (Tex. Grim.

App. 1995); Tucker, 183 S.W.3d at 511. In determining whether the trial court

abused its discretion, we review the total voir dire record in context. See Mathis

v. State, 67 S.W.3d 918, 924 (Tex. Grim. App. 2002); King v. State, 29 S.W.3d

556, 568 (Tex. Grim. App. 2000); Emenhiser v. State, 196 S.W.3d 915, 927 (Tex.

App.-Fort Worth 2006, pet. ref'd).

"A challenge for cause is an objection made to a particular juror, alleging

some fact which renders the juror incapable or unfit to serve on the jury." Tex.

19
Code Crim. Proc. Ann. art. 35.16(a) (West 2001). When a veniremember is

challenged for cause because he could not convict based upon one witness

whom he believed beyond a reasonable doubt and whose testimony proved

every element of the indictment beyond a reasonable doubt, then the

veniremember is validly challenged for cause. Lee, 206 S.W.3d at 623.

3. Veniremember Number Fifty

Here, Veniremember Number Fifty specifically stated that he would not be

able to convict a defendant based on the testimony of one witness regardless of

whether he believed that witness and regardless of whether the witness's

testimony established the elements of the crime. We hold that the trial court did

not clearly abuse its discretion by granting the State's challenge for cause as to

Veniremember Number Fifty. See id.

4. Veniremember Number Twenty-Five

Lindberg also argues that the trial court erred by not granting his challenge

for cause as to Veniremember Number Twenty-Five. Specifically, Lindberg

argues that Veniremember Number Twenty-Five effectively said that he would

base his conclusions on mere speculation or factually unsupported inferences or

presumptions. We see nothing in the record to support that Veniremember

Number Twenty-Five made any such statement. It is evident, when looking at

the voir dire as a whole, that Veniremember Number Twenty-Five effectively said

that he would use his own experiences to determine whether a child was telling

the truth. Determining the credibility of a witness's testimony is the province of

20
the jury. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000)

("The jury is the exclusive judge of the credibility of witnesses and of the weight

to be given testimony."), cert. denied, 532 U.S. 944 (2001); see also Gonzales v.

State, 353 S.W.3d 826, 831 (Tex. Crim. App. 2011) ("We look at the entire record

of voir dire to determine if the evidence is sufficient to support the court's ruling

on a challenge for cause."). Therefore, we cannot conclude that the trial court

clearly abused its discretion by denying Lindberg's challenge to Veniremember

Number Twenty-Five. We overrule Lindberg's second issue.

C. Mother's and Crawford's Testimony

In his third issue, Lindberg alleges that the trial court "erred, abused its

discretion and violated a substantial right of' his by allowing Mother and Crawford

to testify regarding out-of-court statements made by Girl. Lindberg essentially

argues that the two witnesses' testimony was inadmissible hearsay. The State

argues, among several retorts, that Mother's testimony fell under the "outcry"

exception to hearsay and that Crawford's testimony pertained to medical

diagnosis and treatment, and therefore both witnesses' testimony was

admissible. We agree with the State.

1. Mother's Testimony

Hearsay is generally inadmissible. Tex. R. Evid. 802. But article 38.072 of

the Texas Code of Criminal Procedure provides that an outcry statement is not

inadmissible on the basis that it is hearsay if, in relevant part, (1) the statement

describes a sexual assault offense that a defendant committed against a child

21
younger than fourteen years of age; (2) the statement was made by the child to

the first person who was eighteen years old or older, other than the defendant,

that the child spoke to about the offense; and (3) the "trial court finds, in a

hearing conducted outside the presence of the jury, that the statement is reliable

based on the time, content, and circumstances of the statement." Tex. Gode

Grim. Proc. Ann. art. 38.072, §§ 1(1), 2 (West Supp. 2014); see Sanchez v.

State, 354 S.W.3d 476, 487-88 (Tex. Grim. App. 2011); West v. State, 121

S.W.3d 95, 104 (Tex. App.-Fort Worth 2003, pet. ref'd). Outcry testimony

admitted in compliance with article 38.072 is considered substantive evidence,

admissible for the truth of the matter asserted in the testimony. Duran v. State,

163 S.W.3d 253,257 (Tex. App.-Fort Worth 2005, no pet.).

A trial court's decision that an outcry statement is reliable and admissible

under article 38.072 will not be disturbed absent a clear abuse of discretion. /d.;

see Garcia v. State, 792 S.W.2d 88, 92 (Tex. Grim. App. 1990). A trial court

abuses its discretion by admitting a statement under article 38.072 only when the

court's decision falls outside of the zone of reasonable disagreement. Bautista v.

State, 189 S.W.3d 365, 367 (Tex. App.-Fort Worth 2006, pet. ref'd).

In this case, the trial court conducted a hearing outside the jury's presence

to determine when and how Girl had revealed to Mother what Lindberg had

allegedly done to her. Mother testified that Girl told her that ''T.J. put his tee-tee"

in Girl's mouth and that Girl told Mother when this happened. At the hearing,

Mother also averred that as the two drove toward Stacey's house, Girl further

22
explained that Lindberg had put his penis in her "butt" and that it hurt. Mother

further testified that Girl was able to draw in the air with her finger what

Lindberg's penis looked like.

Relying on this court's decisions in In re M.R. and Moon v. State, Lindberg

argues that Mother's questions to Girl during their car ride somehow made Girl's

out-of-court statements unreliable. In re M.R., 243 S.W.3d 807, 813-15, 819

(Tex. App.-Fort Worth 2007, no pet.); Moon v. State, 856 S.W.2d 276, 279-81

(Tex. App.-Fort Worth 1993, pet. ref'd). We find nothing in either of these cases

to support Lindberg's reliance on them. Contrary to Lindberg's assertions, In re

M.R. does not stand for the proposition that follow-up questions make a child's

outcry statement unreliable per se. 243 S.W.3d at 819. Indeed, this court

concluded in Moon that the forensic interviewer's questioning of the children

complainants did not undermine the reliability of the children's admissible outcry

statements. 856 S.W.2d at 279.

In short, the trial court had testimony before it regarding the time, content,

and circumstances of Girl's outcry. We conclude that the trial court did not abuse

its discretion by determining that Mother was the outcry witness in accordance

with article 38.072 and that her testimony was reliable. See Josey v. State, 97

S.W.3d 687, 692 (Tex. App.-Texarkana 2003, no pet.) (holding trial court did

not abuse discretion by finding mother proper outcry witness where child-

complainant told mother that defendant put his penis in child's mouth).

23
 2. Crawford's Testimony About What Girl Said

Rule 803(4) provides an exception to the hearsay rule for "A statement

that: (A) is made for--and is reasonably pertinent to--medical diagnosis or

treatment; and (8) describes medical history; past or present symptoms or

sensations; or their inception; or their general cause." Tex. R. Evid. 803(4). This

exception is based on the assumption that the patient understands the

importance of being truthful with the medical personnel involved to receive an

accurate diagnosis and treatment. Beheler v. State, 3 S.W.3d 182, 188 (Tex.

App.-Fort Worth 1999, pet. ref'd).

Here, Crawford specifically testified to what Girl told her during Crawford's

sexual assault examination of Girl. Crawford's testimony fell under the well-

established exception to the inadmissibility of hearsay found in Rule 803(4). See

Bautista, 189 S.W.3d at 369 (listing a multitude of Texas appellate decisions

upholding this well-established exception to hearsay and the circumstances in

which it might apply). We overrule Lindberg's third issue.

D. Crawford's Diagnosis

In his fourth issue, Lindberg argues that the trial court erred by allowing

Crawford to testify that "she had diagnosed sexual abuse based on what [Girl]

told her." The State counters that Crawford's testimony was both reliable as

expert testimony and was necessary to rebut Lindberg's opening argument that if

he had committed aggravated sexual assault by inserting his penis into Girl's

anus, "surely there'd be some sort of tear, bruising or something."

24
 We agree with Lindberg that Crawford's testimony that she had diagnosed

sexual abuse solely on what Girl told her and her lack of finding any physical

indications of assault was impermissible. See Salinas v. State, 166 S.W.3d 368,

371 (Tex. App.-Fort Worth 2005, pet. ref'd) (holding impermissible expert

testimony diagnosing sexual abuse based on a child's medical history alone).

We are also not swayed by the State's argument that Crawford's testimony of her

diagnosis based solely on what Girl had told her was necessary to rebut his

opening statement. Indeed, Crawford's testimony that no physical indications of

sexual assault were present and that this was typical was sufficient to rebut the

"[opened] door" regarding Lindberg's claim that "surely there'd be some" physical

injury.

Much like in Salinas, we conclude that Crawford's testimony that she

diagnosed sexual abuse based solely on Girl's statements and no findings of

physical injury was non-constitutional error. Id. Because we determine that the

error is not constitutional, rule 44.2(b) is applicable. 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. King v. State, 953 S.W.2d 266, 271

(Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66

S. Ct. 1239, 1253 (1946)). Conversely, an error does not affect a substantial

right if we have "fair assurance that the error did not influence the jury, or had but

a slight effect." Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001);

Johnson v. State, 967 S.W.2d 410,417 (Tex. Crim. App. 1998).

25
 In making this determination, we review the record as a whole, including

any testimony or physical evidence admitted for the jury's consideration, the

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

error and how it might be considered in connection with other evidence in the

case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also

consider the jury instructions, the State's theory and any defensive theories,

whether the State emphasized the error, closing arguments, and even voir dire, if

applicable. Jd. at 355-56.

Here, the record includes testimony from Mother that Girl told her that "T.J.

put his tee-tee" in her mouth and her "bottom." Mother also testified that Girl told

her that Lindberg had put lotion on his penis before "put[ting]" it in her bottom.

Furthermore, and as we will address the admissibility of below, the jury was

provided with a video of Paschall's forensic interview of Girl, in which Girl can be

heard stating again that "T.J." had inserted his penis into both her "mouth" and

"butt." The video also included visual demonstrations of Girl expressing these

things while using anatomically correct dolls, and Girl drew what she purported to

be Lindberg's penis in the video. And even though Crawford should not have

been allowed to comment on the credibility of Girl by testifying to her diagnosis

based solely on Girl's statements, the trial court properly allowed Crawford to

testify to what Girl reported to her as part of the medical exam. Furthermore, and

even though Lindberg argues that Crawford's testimony was emphasized, we

conclude that the State did not emphasize Crawford's testimony regarding her

26
diagnosis; rather, the State emphasized that Girl's statements to Mother,

Paschall, and Grawford were consistent. See Salinas, 166 S.W.3d at 371

(holding impermissible testimony from medical examiner harmless). We overrule

Lindberg's fourth issue.

E. Rolling Disclosures

In his fifth issue, Lindberg argues that the trial court erred by allowing

Paschall to testify about "rolling" disclosures and "what happens in other cases."

Specifically, Lindberg argues that Paschall's testimony about rolling disclosures

was irrelevant in that it "improperly bolster[ed] the State's other evidence" and "it

was not sufficiently tied to the facts of the case to aid the jury in resolving a

factual dispute." The State argues that Paschall's testimony was properly

admitted expert testimony. We agree with the State.

A trial court's decision to admit or exclude evidence is reviewed for an

abuse of discretion. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Grim. App.

2009). Expert testimony that a particular witness is truthful is inadmissible under

Tex. R. Evid. 702. See Tex. R. Evid. 702; Pavlacka v. State, 892 S.W.2d 897,

902 n.6 (Tex. Grim. App. 1994); Yount v. State, 872 S.W.2d 706, 711 (Tex. Grim.

App. 1993); Chavez v. State, 324 S.W.3d 785, 788 (Tex. App.-Eastland 2010,

no pet.). Therefore, an expert witness may not offer a direct opinion on the

truthfulness of a child complainant's allegations. Schutz v. State, 957 S.W.2d 52,

59 (Tex. Grim. App. 1997); Yount, 872 S.W.2d at 708; Chavez, 324 S.W.3d at

788. Nor may an expert offer an opinion that the class of persons to which the

27
complainant belongs, such as child sexual abuse victims, is truthful or worthy of

belief. Pavlacka, 892 S.W.2d at 902 n.6; Yount, 872 S.W.2d at 712; Chavez, 324

S.W.3d at 788-89. But testimony from an expert witness about behaviors

commonly exhibited by children suffering sexual abuse can be relevant and

admissible under Rule 702. Yount, 872 S.W.2d at 708-09; Cohn v. State, 849

S.W.2d 817, 819 (Tex. Crim. App. 1993); Chavez, 324 S.W.3d at 789. Such

testimony is not objectionable on the ground that it bolsters the credibility of the

child complainant. Cohn, 849 S.W.2d at 820-21; Chavez, 324 S.W.3d at 789.

In this case, Paschall did not offer a direct opinion that Girl was truthful or

that she belonged to a class of persons that was truthful or worthy of belief.

Instead, Paschall offered testimony that it is a common behavior exhibited by

children who have suffered sexual abuse to tell small. portions of what had

happened to them in order to gauge the reaction of the adults that they are

disclosing the abuse to. Paschall also testified that this same class of children

will sometimes "roll back" their disclosures as they mature and "gain more sexual

knowledge" and "self-awareness." Specifically, Paschall said that sometimes the

"guilt" or "shame" associated with sexual abuse can cause some children to "pull

back a little bit on what they're saying." This evidence was expert testimony

regarding behaviors commonly exhibited by children who have suffered sexual

abuse, and it is not objectionable on the grounds that it bolstered the credibility of

Girl. Cohn, 849 S.W.2d at 820-21; Chavez, 324 S.W.3d at 789.

28
 Further, Paschall's testimony was directly relevant to the fact that Girl, after

having told three people that Lindberg had placed his "tee-tee" in her "butt," later

said that Lindberg had not placed his penis anywhere on her person but in her

mouth. We hold that the trial court did not abuse its discretion by allowing

Paschall to testify regarding rolling disclosures. See Lair v. State, No. 02-12-

00068-CR, 2013 WL 4033618, at *3 (Tex. App.-Fort Worth Aug. 8, 2013, pet.

refd) (mem. op., not designated for publication) (holding that trial court did not

abuse discretion by allowing expert to testify regarding "rolling disclosures");

Dison v. State, No. 11-09-00094-CR, 2011 WL 1435201, at *6 (Tex. App.-

Eastland Apr. 14, 2011, pet. ref'd) (mem. op., not desiqnated for publication)

(same). We overrule Lindberg's fifth issue.

F. Videotaped Forensic Interview

In his sixth and seventh issues, Lindberg argues that the trial court abused

its discretion by allowing the State to play for the jury the entire videotaped

recording of Paschall's forensic interview with Girl. Lindberg also argues that he

was entitled to a limiting instruction regarding the videotaped interview. The

State argues that the videotaped recording was necessarily admitted by the trial

court in order to rebut Lindberg's defensive theories that Girl had been coached

to say that "T.J. put his tee-tee in my mouth" and that Girl had actually described

a different person, Mother's boyfriend, as the alleged assailant in her forensic

interview.

29
 Rule 107, the rule of optional completeness, is a recognized exception to

the general rule prohibiting admission of hearsay. Tex. R. Evid. 107; Mick v.

State, 256 S.W.3d 828, 831 (Tex. App.-Texarkana 2008, no pet.). This rule is

one of admissibility and permits the introduction of otherwise inadmissible

evidence when that evidence is necessary to fully and fairly explain a matter

"opened up" by the adverse party. Walters v. State, 247 S.W.3d 204, 217-18

(Tex. Crim. App. 2007). It is designed to reduce the possibility of the jury

receiving a false impression from hearing only a part of some act, conversation,

or writing. Id. Rule 107 does not permit the introduction of other similar, but

inadmissible, evidence unless it is necessary to explain properly admitted

evidence. Id. Further, the rule is not invoked by the mere reference to a

document, statement, or act. Id.

Generally, when a portion of a videotaped conversation is inquired into by

the defense, the State is entitled to offer any other evidence that is necessary to

make the conversation fully understood. Credille v. State, 925 S.W.2d 112, 117

(Tex. App.-Houston [14th Dist.] 1996, pet. ref'd). More precisely, under Rule

107, the State is entitled to admission of a complainant's videotaped statement

when (1) the defense attorney asks questions concerning some of the

complainant's statements on the videotape, (2) the defense attorney's questions

leave the possibility of the jury's receiving a false impression from hearing only a

part of the conversation, with statements taken out of context, and (3) the

30
videotape is necessary for the conversation to be fully understood. Id. at 116-

17.

Here, during opening arguments, Lindberg stated that during Girl's forensic

interview, Girl "was walking around and just kept repeating, T.J. put his tee-tee in

me, and it hurt, and kept repeating it like somebody had told her." Later in

opening argument, Lindberg argued that during the interview, Girl described "a

person with no hair. ... As you can see, [Lindberg's] ... got hair." Lindberg

even argued in opening argument that the "person living with [Girl's] mother

doesn't have hair and fits the exact description" of the person Girl described in

the forensic interview. Later, when questioning Mother, Lindberg repeatedly

asked Mother questions regarding statements Girl made in the interview. And

again, during cross-examination of Girl, Lindberg asked Girl about statements

she had made during the interview.

These opening statements and repeated questions left open the possibility

that the jury would receive a false impression-that Girl had denied that Lindberg

touched her "butt" with his penis, that Girl had described a person other than

Lindberg as the assailant, or that Girl appeared to have been coached to make

the statements that she made during the interview. Therefore, for the jury to fully

understand the context of the conversations and determine which interpretation

was correct, the trial court determined it was necessary to review the videotape.

Our standard of review is abuse of discretion. Thus, the question before

this Court is whether the trial court's decision was "outside the zone of

31
reasonable disagreement." Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim.

App. 2005). We conclude that the court's decision was within the bounds of its

discretion and overrule Lindberg's sixth and seventh issues. See Mick, 256

S.W.3d at 831-32 (holding videotaped forensic interview admissible in

prosecution for aggravated sexual assault of a child under rule of optional

completeness where defense attorney's questions to detective about child's

statements on recording left open possibility that jury would receive false

impression); see a/so Hoover v. State, No. 03-05-00641-CR, 2007 WL 619500, at

*7 (Tex. App.-Austin Feb. 27, 2007, no pet.) (not designated for publication)

("Moreover, because the evidence was admissible under rule 107 for a"

purposes, no limiting instruction was necessary at the time the evidence was

introduced or in the charge.").

G. Prosecutor's Closing Argument

In his ninth issue, Lindberg argues that the trial court erred by overruling

his objection to the State's referral to statements made by Girl in the videotaped

interview as "testimony" during closing arguments. We disagree.

Proper jury argument generally encompasses one of the following: (1) an

answer to the opposing counsel's argument; (2) a summation of the evidence

presented at trial; (3) a reasonable deduction drawn from that evidence; or (4) a

plea for law enforcement. Wesbrook, 29 S.W.3d 103 at 115. To determine

whether a party's argument falls within one of these categories, the court

considers the argument in light of the entire record and within the context in

32
which it appears. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988).

A trial court's ruling on an objection that jury argument is improper is reviewed for

abuse of discretion. See Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App.

2004).

Here, the trial court did not abuse its discretion by determining that the

State's argument was a proper summation of the evidence. See Wesbrook, 29

S.W.3d at 115. The prosecutor simply referred to Girl's statements on the

forensic interview video as "testimony" rather than "evidence." Lindberg does not

explain why, according to his briefing, this description was "extreme and

manifestly improper." As the State points out, it seems likely that the video was

referred to as "testimony" because that was what it was most like, and it would

have been easy for jurors to understand the prosecutor's argument. We overrule

Lindberg's ninth issue.

IV. CONCLUSION

Having overruled all nine of Lindberg's issues, we affirm the trial court's

judgments.

/s/ Bill Meier
BILL MEIER
JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: September 24, 2015

33