Victor Noe Cortes-Puga v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-17-00713-CR

Victor Noe Cortes-Puga, Appellant

v.

The State of Texas, Appellee

FROM THE 27TH DISTRICT COURT OF BELL COUNTY
NO. 74974, THE HONORABLE JOHN GAUNTT, JUDGE PRESIDING

MEMORANDUM OPINION

A jury found appellant Victor Noe Cortes-Puga guilty of aggravated sexual

assault of a child under the age of six for sexually assaulting his girlfriend’s five-year-old

daughter. See Tex. Penal Code § 22.021(a)(1)(B), (2)(B), (f)(1). Appellant elected to have the

trial court decide his punishment, see Tex. Code Crim. Proc. art. 37.07, § (2)(b), and the trial

judge sentenced him to serve thirty years in the Texas Department of Criminal Justice, see Tex.

Penal Code § 22.021(e), (f)(1). On appeal, appellant complains about the trial court’s admission

of certain portions of the testimony of a police detective and of a CPS investigator. We affirm

the trial court’s judgment of conviction.

BACKGROUND

The evidence at trial showed that Jessica met and began dating appellant when

she lived in Austin, Texas. Appellant moved in with Jessica and her three children, including her
youngest daughter J.G.1 The couple then moved to Mexico with the children, and Jessica

became pregnant with appellant’s child. Jessica and the children returned to the United States

when she was pregnant. At that time, appellant remained in Mexico. A few years later, the

couple decided to reunite, and appellant returned to the United States in July of 2015. After he

returned, Jessica, her four children, and appellant lived with Jessica’s mother, brother, and sister

in Harker Heights, Texas.

One night about six weeks after appellant had returned, Jessica was sleeping in

her bed with the children. She had the children in bed with her because appellant was supposed

to be out of town working. She awoke when she heard five-year-old J.G. crying. Thinking her

daughter was having a bad dream, Jessica pulled J.G. close to comfort her. She realized that J.G.

was naked from the waist down. Wondering why her daughter did not have her shorts or panties

on, she asked J.G. if she had “went potty on herself.” J.G. said no and told her mother that “he

took them off of me” and continued crying. Jessica got up and turned on the bedroom light. Her

other children were still on the bed sleeping. Appellant was lying on the floor next to the bed

covered with a blanket from the bed. J.G.’s shorts and panties were on the floor next to him.

Jessica sent J.G. to the bathroom. She followed and asked her daughter what had happened. J.G.

told her mother that “he put his weenie on my cookie.” Jessica knew that her daughter called a

“penis” a “weenie” and a “vagina” a “cookie.” So, she knew that her daughter meant that

appellant had put his penis on her vagina. Jessica woke up her mother to take care of the other

children and took J.G. to the police station to report the incident. Afterwards, she took her

daughter to the children’s hospital for an exam.

1
To protect the identities of the child victims in this case, we refer to the children using
only their initials and refer to related adults by their first names. See Tex. R. App. P. 9.10(a)(3).
2
 At the hospital, a sexual assault nurse examiner (SANE) conducted a sexual-

assault exam on J.G. During the history portion of the exam, J.G. told the nurse, “I was sleeping.

My dad got me around him. He told me to get on him. He brought me on him.” She then

explained that “he touched [her]” with his “front butt” and pointed to the genital area on a body

diagram of a girl to show where he touched her. J.G. told the nurse that she also called the “front

butt” “his wiener” and that she called the genital area her “cookie.” The SANE testified that J.G.

then said, “My dad touched my cookie with his wiener.” When she asked J.G. if her dad touched

her on the outside or inside of her clothes, J.G. said, “Inside on my skin. My dad took off my

clothes. I did not pee on myself.” J.G. identified her dad as “Noe” (appellant).

During the genital exam, the SANE noted injuries to J.G.’s sexual organ: redness

on both sides of the labia majora and red, irritated skin on the inner aspects of the labia majora

(the labial creases on both sides) at both the top and bottom. The nurse explained that the

redness and irritation could be caused by an irritant, such as urine, or by rubbing. While the

nurse could give no definitive cause for the injuries to J.G.’s sexual organ, she testified that the

injuries were consistent with J.G.’s description of the sexual assault. A copy of the SANE report

of J.G.’s sexual-assault exam was admitted at trial without objection.

The jury also heard evidence that when Jessica took J.G. to the hospital, her sister,

Brenda, who was living with Jessica, called their other sister, Victoria, who lived next door to

Jessica’s mother with her husband and daughter, to tell her that appellant had hurt one of the

children. At that time, the nature of the injury was not discussed. Victoria learned how appellant

had injured J.G. in a later phone conversation with Brenda. At that point, Victoria felt compelled

to ask her nine-year-old daughter, N.C., if anybody had ever hurt her or done anything to her that

she did not want them to do. N.C. initially denied that anything had happened to her. Both

3
Victoria and her husband, however, felt that N.C. was not telling the truth. Victoria explained to

her daughter that she was not in trouble and that she needed to be honest about whether anything

had happened. N.C. eventually disclosed to her mother that when she was at her grandmother’s

house playing outside with her cousins, she went inside to get a drink, and appellant pulled her

into the children’s bedroom, pulled off her shorts and underwear, threw her on the bed, covered

her mouth with his hand, and “put his penis right next to her vagina.” Victoria testified that her

daughter showed her where appellant put his penis by pointing to the crease where her thigh met

her genital area.

At trial, N.C. described the incident that she told her mother about, saying that

appellant put his “thing”—which, she explained, is the part of a boy’s body that he pees with—

on the upper inside of her thigh. In court, she demonstrated where appellant’s “thing” touched

her by pointing to the top part of her thigh at the crease. N.C. testified that appellant did not

touch her private with his “thing” but said that it was “really close” to her private. Her testimony

indicated that this incident happened after appellant had returned from Mexico in July on the

Sunday before school started. N.C. explained that she did not tell anyone what appellant had

done because he had threatened to hurt her parents.

A few days after N.C. told her mother what appellant had done to her, N.C.

agreed to talk to the police. Victoria reported the incident to the police and took her daughter for

a sexual-assault exam at the children’s advocacy center. N.C. told the SANE that when she went

inside her grandmother’s house to get juice, appellant grabbed her by her arm, threw her on the

bed in the children’s room, pulled down her underwear and pants, “popped it [out] and put it on

[her].” N.C. pointed to the penis on a body diagram of a boy to show what “it” was. She

explained that appellant touched her “on the inside [of her clothes] on [her] skin” with his private

4
part, which she called a “wiener.” The nurse noted no injuries to N.C. during the exam. A copy

of the SANE report of N.C.’s sexual-assault exam was admitted at trial without objection.

The evidence at trial also showed that both girls were taken, on separate days, to

the children’s advocacy center for forensic interviews. The girls were interviewed by different

forensic interviewers, who both testified at trial. The video recordings of the forensic interviews

were admitted at trial without objection. Also admitted without objection were: an anatomical

drawing of a girl where J.G. had circled the sexual organ to indicate the part of her body that

appellant “had hurt,” an anatomical drawing of a girl with a line drawn on it to indicate where

N.C. had said that appellant had “put his thing,” and a picture drawn by N.C. during her forensic

interview to show what the “thing” looked like and to indicate which part of it touched her body.

Appellant was charged by indictment with aggravated sexual assault of a child

younger than six years of age for the incident involving J.G.2 See Tex. Penal Code

§ 22.021(a)(1)(B)(iii) (defining aggravated sexual assault of child as intentionally or knowingly

causing sexual organ of child to contact sexual organ of another person, including actor). The

State called thirteen witnesses at trial: three police detectives, two who testified about

interviewing appellant and one who testified about the pseudonym assigned to J.G.; the sexual

assault nurse examiner, who testified about the exams she performed on both girls; Jessica, who

testified about J.G.’s outcry; Victoria, who testified about N.C.’s outcry; two forensic scientists

from the DPS crime lab, who testified about the forensic testing conducted in this case;3 an

2
The record reflects that appellant was indicted in a separate case for the sexual assault
he allegedly perpetrated against N.C.
3
Their testimony indicated that no semen was detected on clothing items belonging to
J.G. or the swabs obtained from J.G. during the sexual-assault exam and that the only DNA
present on the tested clothing items and sexual-assault swabs was contributed by J.G.
5
investigator from Child Protective Services, who testified about the CPS investigation of the

sexual-abuse allegation involving J.G.; and J.G. and N.C., who described the sexual assaults that

appellant had perpetrated against them. The defense called no witnesses.

The jury found appellant guilty of aggravated sexual assault of a child under the

age of six as charged in the indictment. The trial court ordered a pre-sentence investigation and

reset the case for sentencing. At the punishment hearing, no further evidence was presented.

The trial court sentenced appellant to serve thirty years in prison. This appeal followed.

DISCUSSION

Appellant raises two points of error challenging the trial court’s evidentiary

rulings. First, he contends that the trial court erred by admitting a police detective’s testimony

about the “indicators of deception” that appellant exhibited when he was interviewed because the

testimony was inadmissible expert testimony on credibility. Second, appellant asserts that the

trial court erred in admitting the CPS investigator’s testimony about J.G.’s forensic interview

because it was indirect hearsay.

Standard of Review

We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019); Henley v. State,

493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). An abuse of discretion does not occur unless the

trial court acts “arbitrarily or unreasonably” or “without reference to any guiding rules and

principles.” State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery

v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)); accord Rhomer, 569 S.W.3d at 669.

Further, we may not reverse the trial court’s ruling unless the determination “falls outside the

6
zone of reasonable disagreement.” Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App.

2016); see Henley, 493 S.W.3d at 83 (“Before a reviewing court may reverse the trial court's

decision, ‘it must find the trial court’s ruling was so clearly wrong as to lie outside the zone

within which reasonable people might disagree.’” (quoting Taylor v. State, 268 S.W.3d 571, 579

(Tex. Crim. App. 2008))). An evidentiary ruling will be upheld if it is correct on any theory of

law applicable to the case. Henley, 493 S.W.3d at 93; De La Paz v. State, 279 S.W.3d 336, 344

(Tex. Crim. App. 2009).

Testimony of Detective

At trial, Jeff Waggoner, a detective with the Harker Heights Police Department,

testified about the police interview with appellant. He explained that, because he did not speak

Spanish and appellant spoke only Spanish, Daniel DeLeon, the only Spanish-speaking detective

in the department, interviewed appellant. Detective Waggoner was present during the interview.

After establishing that appellant had been given the appropriate constitutional

warnings before the questioning started, see Miranda v. Arizona, 384 U.S. 436, 478–79 (1966),

the prosecutor asked Detective Waggoner about his training on recognizing deception:

Q Now have you as a detective had training on how to recognize signs
of deception?

A I have.

Q All right. Tell me about that training. What type of training have
you had?

A Over my training and period at the police department—

7
At that point, appellant objected, complaining that “signs of deception” was “wholly

speculative.” The trial court asked appellant to “rephrase [his] objection,” and appellant stated,

“My objection is that it calls for speculation on the part of the witness and, basically, it’s seeking

to try and make the witness, basically, a human lie detector.” The court ruled that it would

allow the question about training. The prosecutor repeated the question, and the detective

explained that he had acquired 400 hours of training involving kinesiology and nonverbal

communication. In response to follow-up questions, he defined the concepts of “kinesiology”

and “nonverbal communication.”4

The prosecutor then asked Detective Waggoner about how detectives “use this

type of training to detect deception.” The detective answered, “Well, most people don’t tell us

the truth right off the bat.” Appellant objected, asserting that “we are basically using this

supposedly as a human lie detector.” The trial court overruled the objection. The prosecutor

prompted the detective to continue, and the detective explained:

So with individuals not telling us the truth most of the time, as far as being a
detective, the body reacts in typical ways. Not everybody is the same, but there’s
a lot of things that a body will do. Like I said, large pupil dilation, rapid
breathing, nonverbal shaking of heads, yes but saying no at the same time.

The prosecutor then asked if “detectives use this type of training when doing an interview of a

suspect,” and Detective Waggoner confirmed that they do.

Turning to appellant’s interview, the prosecutor asked Detective Waggoner,

4
The detective testified that kinesiology is “the study of nonverbal body language. The
body reacts—It’s stuff you can’t control: Heart rate, breathing, pupil dilation, sexual drive, stuff
like that is all controlled by the atomic [sic] nervous system which means you can’t do anything
about it, it just happens.” He explained that “‘Nonverbal’ is basically the stuff that you use
without your words. Grandiose hand gestures for trying to get a point across. Trying to
convince somebody that you’ve not done something or that you’re [sic] without using words.”
8
“[W]hat type of indications of deception did you see during the interview with the defendant?”

Appellant objected, asserting the “same reasons.” The trial court overruled the objection.

Detective Waggoner then testified about the indicators of deception that he saw appellant exhibit,

which included “us[ing] large open-hand gestures trying to convey that he was innocent of doing

anything” “when talking about the incident itself,” “extreme pupil dilation,” and “[c]hanges in

pitch and voice tone.” After the detective testified about his observations, the prosecutor

changed the topic of inquiry, questioning Detective Waggoner about the content of the

interview—that is, appellant’s statements—as relayed to him by Detective DeLeon.

In his first point of error, appellant contends that the trial court abused its

discretion by allowing the prosecutor to elicit testimony from Detective Waggoner about the

“indicators of deception” that appellant exhibited during the police interview because it was

inadmissible expert testimony on credibility.

As a prerequisite to presenting a complaint for appellate review, the record must

show that the complaint was made to the trial court by a timely request, objection, or motion.

Tex. R. App. P. 33.1(a)(1). To be timely, an objection must be made at the earliest

opportunity or as soon as the grounds for the objection become apparent. See Yazdchi v. State,

428 S.W.3d 831, 844 (Tex. Crim. App. 2014); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim.

App. 2011). In other words, the objection should be made “as soon as the [objecting party]

knows or should know that an error has occurred.” Lackey v. State, 364 S.W.3d 837, 843 (Tex.

Crim. App. 2012); Hollins v. State, 805 S.W.2d 475, 476 (Tex. Crim. App. 1991). If a defendant

fails to object until after an objectionable question has been asked and answered, and he can

show no legitimate reason to justify the delay, his objection is untimely, and any claim of error is

9
forfeited. Luna v. State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008); Lagrone v. State,

942 S.W.2d 602, 618 (Tex. Crim. App. 1997).

Here, the earliest possible opportunity for appellant to have objected to evidence

relating to signs or indicators of deception that appellant exhibited during the interview was

when the prosecutor asked Detective Waggoner if he had training on “how to recognize signs of

deception” after establishing that the detective had participated in appellant’s interview.

Appellant did not object. The detective answered the question, confirming that he had such

training, and the prosecutor then propounded the next question, asking the detective to describe

his training. Only when Detective Waggoner began to answer that follow-up question did

appellant interrupt to object. Similarly, when the prosecutor later asked Detective Waggoner

how detectives “use this type of training to detect deception,” appellant waited to object until

after the detective answered that “most people don’t tell us the truth right off the bat.” Only

when the prosecutor subsequently asked the detective about the “indications of deception” that

he saw appellant exhibit during the interview did appellant timely object. Thus, while appellant

complains that Detective Waggoner testified “at length over [appellant]’s repeated objections to

nonverbal indicators of deception that persons may display and then explained how [appellant]

had displayed several indicators of deception during his interrogation,” only the latter

testimony—about the indicators of deception that the detective saw appellant exhibit during the

interview—was timely objected to.

However, to preserve a complaint for appellate review, the point of error raised on

appeal must comport with the objection made at trial, or error is not preserved. Thomas v. State,

505 S.W.3d 916, 924 (Tex. Crim. App. 2016); Bekendam v. State, 441 S.W.3d 295, 300 (Tex.

Crim. App. 2014). The record here demonstrates that the basis of appellant’s objection to the

10
detective’s testimony about the signs or indicators of deception was speculation. Appellant’s

initial objection asserted that the testimony “call[ed] for speculation” and sought to “make the

witness . . . a human lie detector.” At that time, appellant did not argue that the testimony should

be excluded because it constituted inadmissible expert testimony about credibility. Nor did he

raise any such argument in his later objections, which both related back to his initial objection

based on speculation. The second objection simply asserted again that “we are basically using

this supposedly as a human lie detector” using the same language used in his speculation

objection. The third objection merely asserted that he objected for the “same reasons.”

The ground for appellant’s complaint about inadmissible expert testimony—that

the detective’s testimony about the signs of deception appellant exhibited during the interview

was inadmissible expert testimony on credibility—was or should have been apparent when the

prosecutor asked Detective Waggoner whether he had training on recognizing signs of deception

when discussing appellant’s interview. But appellant did not object on that ground. Instead, he

only complained that the testimony called for speculation.

Appellant contends that his use of the phrase “human lie detector” invoked Yount

v. State, in which the Court of Criminal Appeals held that “Rule 702 does not permit an expert to

give an opinion that the complainant or class of persons to which the complainant belongs is

truthful.” 872 S.W.2d 706, 712 (Tex. Crim. App. 1993). He notes that in explaining its

reasoning, the court observed that “[e]xperts on child sexual abuse are not human lie detectors.”

Id. at 710 (quoting John E.B. Meyers, et al., Expert Testimony in Child Sexual Abuse Litigation,

68 Neb. L. Rev. 1, 121 (1989)). Appellant maintains that his use of the phrase “human lie

detector” sufficed to present his complaint about inadmissible expert testimony on credibility to

the trial court and preserve it for appellate review.

11
 We agree that no “magic words” or citation to specific statutes or rules are

required to preserve a complaint for appeal. Ex parte Marascio, 471 S.W.3d 832, 842 (Tex.

Crim. App. 2015); Pena, 353 S.W.3d at 807. However, while it is true that courts “have

long eschewed hyper-technical requirements for error preservation” and that one “need not

employ ‘specific words or technical considerations’ to avoid forfeiting their complaints,”

Vasquez v. State, 483 S.W.3d 550, 554 (Tex. Crim. App. 2016), the objecting party must “let the

trial court know what he wants and why he feels himself entitled to it clearly enough for the

judge to understand him.” Id. A party must convey the substance of the complaint to the trial

court clearly enough to provide the judge and the opposing party an opportunity to address and,

if necessary, correct the purported error. Marascio, 471 S.W.3d at 842; Pena, 353 S.W.3d at

807. “[A] general or imprecise objection will not preserve error for appeal unless ‘the legal basis

for the objection is obvious to the court and to opposing counsel.’” Vasquez, 483 S.W.3d at 554

(quoting Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006)) (emphasis in

original). We are not persuaded that it was obvious from appellant’s use of the phrase “human

lie detector” that appellant was complaining that Detective Waggoner’s testimony about the

indicators of deception that appellant exhibited during the interview was inadmissible because it

was expert testimony on credibility. While appellant used the phrase “human lie detector” in his

objection, he did so in connection with asserting that the testimony called for speculation.

Nevertheless, even assuming that appellant’s use of the phrase “human lie

detector” can be construed as raising a complaint that the detective’s testimony was inadmissible

expert testimony on credibility, and assuming arguendo that this evidence was inadmissible for

that reason and, thus, that the trial court abused its discretion in admitting the testimony, we

conclude that the error is harmless.

12
 The erroneous admission of evidence is non-constitutional error. Gonzalez

v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018); Barshaw v. State, 342 S.W.3d 91, 93

(Tex. Crim. App. 2011); Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007).

Non-constitutional error requires reversal only if it affects the substantial rights of the accused.

See Tex. R. App. P. 44.2(b); Gonzalez, 544 S.W.3d at 373; Barshaw, 342 S.W.3d at 93.

“A substantial right is affected when the error had a substantial and injurious effect or

influence in determining the jury’s verdict.” Thomas, 505 S.W.3d at 926 (quoting King v. State,

953 S.W.2d 266, 271 (Tex. Crim. App. 1997)); see Gonzalez, 544 S.W.3d at 373. We will not

overturn a criminal conviction for non-constitutional error if, after examining the record as a

whole, we have fair assurance the error did not influence the jury or influenced the jury only

slightly. Gonzalez, 544 S.W.3d at 373; Barshaw, 342 S.W.3d at 93.

In assessing potential harm, our focus is not on whether the outcome of the trial

was proper despite the error but on whether the error had a substantial or injurious

effect or influence on the jury’s verdict. Barshaw, 342 S.W.3d at 93–94; Sandoval v. State,

409 S.W.3d 259, 287–88 (Tex. App.—Austin 2013, no pet.). We review the entire record to

ascertain the effect or influence on the verdict of the wrongfully admitted evidence. Barshaw,

342 S.W.3d at 93; see Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010) (in

conducting harm analysis “we examine the entire trial record and calculate, as much as possible,

the probable impact of the error upon the rest of the evidence”). In making this determination,

we consider: (1) the character of the alleged error and how it might be considered in connection

with other evidence; (2) the nature of the evidence supporting the verdict; (3) the existence and

degree of additional evidence indicating guilt; and (4) whether the State emphasized the

13
complained of error. Gonzalez, 544 S.W.3d at 373; Barshaw, 342 S.W.3d at 94; Motilla v. State,

78 S.W.3d 352, 356–58 (Tex. Crim. App. 2002).

Here, Detective Waggoner testified only very briefly about the signs of deception

that appellant exhibited during the interview. The entirety of the testimony relating to the

detective’s training on recognizing deception as well as his testimony about the signs of

deception that appellant exhibited during the interview was elicited in less than four pages of the

State’s twenty-four-page direct examination of the detective. Significantly, the State did not

emphasize the detective’s testimony about the behavior that he observed beyond introducing it.

The State did not mention Detective Waggoner’s testimony about appellant’s behavior indicating

deception at all during the rest of trial, and the prosecutors did not mention it during closing

argument. Although the State did discuss appellant’s interview during its closing argument, the

prosecutor did not mention the detective’s testimony about appellant’s behavior during the

interview or the signs of deception that he allegedly exhibited. Instead, the State discussed the

content of appellant’s statements, emphasizing that appellant’s story, presented in the recording

of the interview, “[did]n’t make a lot of sense” and failed to explain why J.G. was naked from

the waist down when Jessica awoke to find her crying.

Concerning the nature of the evidence supporting the verdict, the jury considered

evidence that on the night of the offense, immediately after the incident, Jessica awoke to her

five-year-old daughter crying and discovered that J.G. was naked from the waist down. When

Jessica asked questions to discern what was going on, J.G. denied that she had had an accident—

and the evidence reflected that there was no wet spot on the bed—and told her mother that

appellant had “put his weenie on [her] cookie.” The jury also heard details about the incident

from J.G. during her testimony, and she provided specific facts about when the incident

14
happened, where it happened, what she was doing, what appellant did, how appellant touched

her, and how she felt.

As for additional evidence indicating guilt, the sexual assault nurse examiner

testified about the details of the incident that J.G. recounted to her during the sexual-assault

exam, and the record reflects that those details were consistent with J.G.’s outcry to her mother

and her testimony at trial. Further, the results of the sexual-assault exam corroborated J.G.’s

account of the sexual assault. The nurse described injuries to J.G.’s sexual organ that were

consistent with the sexual assault J.G. recounted. The jury also heard evidence that appellant

attempted to perpetrate similar conduct, during the same time frame, with J.G.’s nine-year-old

cousin, N.C. Both girls, in separate interviews, gave similar descriptions of appellant putting his

“wiener” on or near their sexual organ, touching them under their clothes on their skin, and the

evidence demonstrated that the girls had not spoken to each other about appellant’s conduct

before giving their separate accounts of appellant’s sexual assaults against them.

On this record, we conclude that the admission of the challenged portions of the

detective’s testimony about appellant exhibiting signs of deception during his interview—if it

was error and was properly preserved for appellate review—did not influence the jury or had but

a slight effect. Thus, because it did not affect appellant’s substantial rights, it was harmless. We

overrule appellant’s first point of error.

Testimony of CPS Investigator

Shelby Foster, an investigator with Child Protective Services, testified at trial

about the investigation of the sexual-abuse allegation against appellant that she conducted on

behalf of the Texas Department of Family and Protective Services. She indicated that, as part of

15
that investigation, she observed the forensic interview of J.G. at the children’s advocacy center.

The prosecutor asked Foster, “Without telling us what her words were, does [J.G.] make some

type of outcry of sexual abuse involving—.” Appellant interrupted the question to object,

complaining that “[the question] calls for hearsay. Just not the specific words, but it is

effectively calling for hearsay.” The following exchange ensued:

PROSECUTOR: If it is not words it is not hearsay.

APPELLANT: The question assumes that, Your Honor.

THE COURT: The question was: Was a report made? You may answer
that question.

The prosecutor repeated the question, and Foster confirmed that J.G. made “an outcry of some

type of sexual abuse” during the forensic interview. In his second point of error, appellant

argues that the trial court erred by allowing this testimony because it constituted inadmissible

indirect hearsay.

Hearsay is a statement, other than one made by the declarant while testifying at a

trial, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay

is generally inadmissible except as provided by the rules of evidence or statute. Tex. R. Evid.

802. The hearsay prohibition cannot be circumvented by eliciting the substance of the statement

in indirect form. Schaffer v. State, 777 S.W.2d 111, 113 (Tex. Crim. App. 1989). If the content

of a statement is presented by implication, such “backdoor hearsay” is subject to the same rules

and limitations as the more common form of hearsay. Cerda v. State, No. 03-12-00582-CR,

2014 WL 4179359, at *2–3 (Tex. App.—Austin Aug. 22, 2014, pet. ref’d) (mem. op., not

16
designated for publication); Gilbert v. State, 874 S.W.2d 290, 295 (Tex. App.—Houston [1st

Dist.] 1994, pet. ref’d); see Schaffer, 777 S.W.2d at 113.

Whether testimony violates the hearsay prohibition necessarily turns on how

strongly the content of an out-of-court statement can be inferred from the context; the question is

whether the strength of the inference produces an “inescapable conclusion” that the evidence is

being offered to prove the substance of an out-of-court statement. Head v. State, 4 S.W.3d 258,

261–62 (Tex. Crim. App. 1999); Cerda, 2014 WL 4179359, at *2. “An analysis of whether the

impermissible inference is so overriding as to fall within the hearsay prohibition will necessarily

turn on the specific factual circumstances of a given case.” Head, 4 S.W.3d at 262 n.4.

In his brief, appellant complains that “the prosecutor’s sole purpose for asking

Foster whether J.G. ‘ma[d]e an outcry of some type of sexual abuse’ was to convey to the jury

that J.G. told the forensic interviewer that someone had sexually abused her.”

As an initial matter, we observe that an out-of-court statement that is not offered

for the truth of the matter asserted, but for some other reason, is not hearsay. Guidry v. State,

9 S.W.3d 133, 152 (Tex. Crim. App. 1999); Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim.

App. 1995). “An extrajudicial statement . . . which is offered for the purpose of showing what

was said rather than for the truth of the matter stated therein does not constitute hearsay.”

Dinkins, 894 S.W.2d at 347 (citing Crane v. State, 786 S.W.2d 338, 351 (Tex. Crim. App.

1990); Porter v. State, 623 S.W.2d 374, 385 (Tex. Crim. App. 1981); and Nixon v. State,

587 S.W.2d 709, 711 (Tex. Crim. App. 1979)). Here, the context of the questioning indicates

that the State offered Foster’s testimony about J.G.’s outcry statement to explain the

investigative actions taken by CPS. Thus, it would not be outside the zone of reasonable

disagreement for the trial court to find that the testimony was not offered to prove the truth of the

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matter asserted in J.G.’s outcry (that appellant sexually assaulted J.G. in the manner that she

described) but instead was being offered to provide the jury with relevant background

information concerning the circumstances surrounding the CPS investigation (the fact that J.G.

made an outcry) to explain the efforts Foster made to ensure the safety of the children and why

she made them.

Moreover, hearsay by inference, or “backdoor hearsay,” violates the prohibition

against hearsay because it presents the content or substance, indirectly, of the out-of-court

statement. Here, the complained-of testimony did not convey the content of J.G.’s out-of-court

statements, even by implication. In no way did Foster convey any specific details about what

J.G. disclosed during the forensic interview or impart any of J.G.’s descriptions of the

sexual-assault incident. Rather, Foster’s testimony merely conveyed, in a general way, that an

allegation of sexual abuse had been made. She simply confirmed that J.G. made an outcry

statement, which dictated how she proceeded with her CPS investigation. This is comparable to

a police officer testifying that the police received a report of a particular crime and, based on that

report, conducted an investigation. The prohibition against indirect or backdoor hearsay does not

prohibit a witness from testifying about actions she took in response to an out-of-court statement,

but only from detailing the contents of the statement when doing so. See Schaffer, 777 S.W.2d at

114–15 (holding it was permissible for police officer to testify that officer was acting in response

to “information received,” but officer was not permitted to relate historical aspects of case, which

were replete with hearsay statements); Dunbar v. State, No. 03-12-00315-CR, 2014 WL 2741237,

at *5 (Tex. App.—Austin June 13, 2014, pet. ref’d) (mem. op., not designated for publication)

(“Witnesses are generally allowed to explain that an out-of-court statement caused the witness to

take a particular action so long as the testimony does not strongly imply the content of the

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out-of-court statement.”); see, e.g., Trevino v. State, No. 03-17-00156-CR, 2017 WL 5119190, at

*2 (Tex. App.—Austin Nov. 3, 2017, pet. ref’d) (mem. op., not designated for publication)

(explaining that trial court could have reasonably concluded that officer’s testimony relaying

complaints made by area residents was offered to explain why police had decided to conduct

prostitution sting operation in that area).

Furthermore, the test for “backdoor hearsay” is whether the “‘State’s sole intent in

pursuing [a] line of questioning was to convey to the jury’ the contents of out-of-court

statements.” Head, 4 S.W.3d at 262 (quoting Schaffer, 777 S.W.2d at 114). Because the content

of J.G.’s out-of-court statements was not impliedly presented in Foster’s testimony, and given

the context in which the CPS investigator’s testimony was elicited, we are unable to conclude

from the record that the State’s sole intent in offering the complained-of testimony was to

convey the content or substance of J.G.’s out-of-court statements. See id. (concluding that trial

court could have reasonably determined that State’s intent in questioning witness was not solely

to convey out-of-court statement).

Accordingly, for the above reasons, we conclude that the trial court did not abuse

its discretion in allowing the complained-of testimony of the CPS investigator. We overrule

appellant’s second point of error.

CONCLUSION

Having concluded that the admission of the complained-of portion of the

detective’s testimony about the indicators of deception that appellant exhibited during the police

interview, if it was error and was properly preserved for appellate review, was not harmful and

that the trial court did not abuse its discretion by admitting the complained-of portion of the CPS

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investigator’s testimony about J.G.’s forensic interview, we affirm the trial court’s judgment

of conviction.

__________________________________________
Edward Smith, Justice

Before Justices Goodwin, Baker, and Smith

Affirmed

Filed: August 7, 2019

Do Not Publish

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