NUMBER 13-18-00189-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
TAMORA FOSTER, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 252nd District Court
of Jefferson County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Tijerina1
Memorandum Opinion by Justice Tijerina
A jury convicted Tamora Foster of continuous sexual abuse of a child. See TEX.
PENAL CODE ANN. § 21.02. By four issues, which we address as three, Foster argues that
1 This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
the trial court erred by (1) allowing a detective to testify that the child’s demeanor was
consistent with that of a child who had been sexually abused because the probative value
of such testimony was outweighed by its prejudicial nature; (2) allowing speculative
testimony; and (3) refusing Foster’s requested jury charge on voluntariness. We affirm.
I. BACKGROUND
At trial, Foster’s son C.R. 2 testified that when he was eleven years old, he walked
into his mother’s room while she was having sex with her boyfriend, James. C.R. tried to
leave, but Foster encouraged him to join in on the “fun” they were having. According to
C.R., Foster kept “being all showy and showing [him] her parts.” C.R. repeatedly refused,
but when Foster insisted, he felt he had no choice but to approach her. C.R. testified that
he was in shock and remained silent for the remainder of the encounter while she helped
him undress. As Foster got “on top of his private part,” she asked him to talk dirty to her.
He testified that he “was just so confused and conflicted and just so many things all at
once.” C.R. stated that when his private part was inside his mother’s vagina, “It felt so
wrong. It just felt wrong all over it, all over it, just everywhere.” He further stated that
Foster regularly did drugs in front of him, and she was “drugged up” when this encounter
happened. According to C.R., Foster let out a “big moan” when she climaxed.
C.R. told the jury that his mother’s “big moan” has been haunting him with terrifying
flashbacks: “like a punched-in-the-gut feeling. It’s like the gut feeling is so bad it actually
feels like someone has literally punched you in your gut. And every so often, it will repeat
and it will just get worse and worse every time.” C.R. also testified that James was
masturbating while watching. Afterwards, Foster approached him and asked him not to
2 To protect the identity of children, we refer to them by aliases. See TEX. R. APP. P. 9.8(b).
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tell anyone about their encounter or she would go to jail.
The second time this happened about a year later, C.R. recalled that he wanted a
pizza, and he went into Foster’s bedroom to ask for it. When C.R. realized Foster was
having intercourse with James, again, he attempted to leave. According to C.R., Foster
was “doped up,” got out of bed, and got in front of him to prevent him from leaving the
room. He testified that Foster performed oral sex on him before getting on top of him “like
last time.”
Detective Elizabeth Foshee with the Jefferson County Sheriff’s Office observed
C.R.’s interview with a child advocacy center via closed-circuit TV. She testified that
throughout the interview, C.R. was crying, angry, upset, and “very, very emotional.”
Detective Foshee interviewed Foster and James. According to Detective Foshee, both
Foster and James admitted that Foster had sex with her son. Foster blamed other people
for her actions including C.R.’s father and Foster’s grandmother.
Ronda Devenzio, a counselor at C.R.’s school, testified that C.R. was crying
uncontrollably when he made his outcry. She told the jury that C.R. is emotionally
disturbed, gets easily frustrated, cries often, and shuts down.
Kim Hanks, a counselor at a child advocacy center testified that she interviewed
C.R., and his behavior and demeanor were consistent with a child who had been sexually
assaulted. According to Hanks, C.R. was very emotional and angry during the interview.
C.R. told Hanks that Foster kept calling him in and telling him it was okay when he
repeatedly refused to participate in the act.
Taylor Stevens, a Child Protective Services (CPS) adoptive home developer, went
to C.R.’s home to interview him. According to Stevens, C.R. was very frustrated that
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sexual incidents involving his mother were occurring and nothing was being done about
it. C.R. told Stevens that as soon as C.R.’s father dropped him off at Foster’s home,
Foster immediately pulled out her drugs. Foster was adamant about C.R. joining her and
James. C.R. was embarrassed about the incident, and he told Stevens he did not want
to return to foster care. 3
Brenda Garison, a sexual assault nurse examiner, testified that she remembers
C.R. distinctly because he was very angry and teary-eyed, and he would repeatedly hit
his hands on his knees. Garison believed C.R. was angry at the system and made
excuses for the system, such as blaming himself for giving in to Foster’s sexual demands.
Kelli Spell, another school counselor, testified that C.R. is anxious, has a low
frustration level, and is very intelligent. Spell stated that C.R. was terrified about going
back into the foster system and broke down in hysteria in her office because of his past
experiences in the foster system.
Charita Dangerfield, a CPS adoption caseworker, testified that C.R. was afraid to
tell anyone about the sexual abuse because he did not want to get his mother in trouble,
yet he was angry that Foster told him it was okay to have intercourse with her. In his
interview, C.R. elaborated about what he witnessed between Foster and James and the
details that transpired between Foster and C.R.
Nancy Blitch, a CPS family coordinator, testified that during her interview, C.R.
was crying and started tearing a tissue into various pieces in anger when he was
describing the sexual abuse. According to her, he was very detailed and told her multiple
3 C.R. was previously in the foster system because of Foster’s neglectful supervision and drug use.
Moreover, C.R. was allegedly raped while in the foster system according to several witnesses that testified
at trial.
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times how embarrassed he was because he felt like he maybe willingly had sex with his
mother. He was also afraid of getting into trouble and going to “juvi.”
Julie Prudhome, a clinical director at a child advocacy center, diagnosed C.R. with
post-traumatic stress disorder. According to her, C.R. had intrusive thoughts, difficulty
sleeping, changes in mood and cognition, suffered from hyperarousal, and exhibited
avoidant behavior, among other things. She stated that she had approximately fifty
sessions with C.R., and he confided in her that he felt ashamed and betrayed by Foster.
Foster testified as to her psychiatric treatment and the various diagnoses she has
received over time. Foster stated she did not remember having intercourse with C.R., but
she remembered being naked in her room while James was performing oral sex on her
when C.R. walked in the room, and James later masturbated. According to Foster, she
believed that she was having sex with her son in a dream: “I had a dream that [C.R.] had
sex with me, but I don’t know . . . that [C.R.] was on top of me. I dreamed that before, I
believe.” She further clarified that she was not in her right state of mind on the day she
had sex with her son because she was high. Foster apologized for the sexual assault
and further stated that C.R. was telling the truth. Foster testified that she felt like
terminating her parental rights was the best thing for C.R.
A jury found her guilty of continuous sexual abuse of a child and sentenced her to
fifty years’ imprisonment. This appeal followed.
II. ADMISSION OF EVIDENCE
By her first issue, Foster argues that the trial court erred by allowing Detective
Foshee to comment on whether C.R.’s behavior and demeanor were consistent with that
of a child who had been sexually abused. Foster complains that the testimony was
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speculative because Detective Foshee was not an expert and the prejudice outweighed
its probative value. By her second issue, Foster asserts that the trial court erred by
allowing Detective Foshee to speculate as to whether Foster was a “willing participant”
regarding the allegations against her.
A. Standard of Review
We review the trial court’s ruling on the admission of evidence for an abuse of
discretion. See Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018);
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Amberson v. State,
552 S.W.3d 321, 327 (Tex. App.—Corpus Christi–Edinburg 2018, no pet.). A trial court
abuses its discretion if it acts arbitrarily or unreasonably, without reference to any guiding
rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)
(en banc). When considering a trial court’s decision to admit or exclude evidence, we will
not reverse the trial court’s ruling unless it falls outside the “zone of reasonable
disagreement.” Id. at 391; see Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App.
2003). If the trial court’s decision to admit or exclude evidence aligns with any theory of
law applicable to the case, its decision will not be disturbed. See Ellison v. State, 201
S.W.3d 714, 723 (Tex. Crim. App. 2006); Osbourn v. State, 92 S.W.3d 531, 538 (Tex.
Crim. App. 2002).
B. Harm Analysis
For purposes of our analysis, we will assume—without deciding—that Detective
Foshee’s testimony was improper. This error is non-constitutional and requires reversal
only if it affects Foster’s substantial rights. See Barshaw v. State, 342 S.W.3d 91, 93
(Tex. Crim. App. 2011) (providing that the erroneous admission of evidence is non-
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constitutional error); see TEX. R. APP. P. 44.2(b) (providing that non-constitutional error
“that does not affect substantial rights must be disregarded”). We will not overturn a
criminal conviction for non-constitutional error if, after examining the record as a whole,
we have fair assurance that the error did not influence the jury or had but a slight effect.
Barshaw, 342 S.W.3d at 93; Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
“In considering the potential to harm, the focus is not on whether the outcome of
the trial was proper despite the error, but whether the error had a substantial or injurious
effect or influence on the jury’s verdict.” Barshaw, 342 S.W.3d at 93. We reverse for
non-constitutional error if we have grave doubt that the result of the trial was free from the
substantial effect of the error. Id. “Grave doubt” means that “in the judge’s mind, the
matter is so evenly balanced that he feels himself in virtual equipoise as to the
harmlessness of the error.” Id. In assessing the likelihood that the jury was improperly
influenced, we consider everything in the record, 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. Id. We may also consider the jury instruction
given by the trial judge, the state’s theory, defensive theories, closing arguments, voir
dire, and whether the State emphasized the error. Id. The weight of evidence of the
defendant’s guilt is also relevant in conducting a harm analysis under Rule 44.2(b). See
Neal v. State, 256 S.W.3d 264, 285 (Tex. Crim. App. 2008).
Here, the jury heard testimony from C.R. describing the sexual abuse. Specifically,
the jury heard C.R. testify that on two occasions, when he was eleven and twelve, Foster
had sexual intercourse with him, and on the second occasion, she performed oral sex on
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him. He provided details about the abuse, including specifics about what Foster did and
when, what she said, where they were, and how it made him feel. He also told the jury
about Foster specifically asking him not to tell anyone or she would go to jail. Moreover,
he provided many details about Foster’s drug use, which Foster admitted.
In addition to C.R.’s testimony, the jury heard other evidence supporting a finding
of Foster’s guilt, such as Detective Foshee’s testimony that Foster and James admitted
to Foster having sex with her son. The jury also heard the outcry testimony from two of
C.R.’s school counselors; the sexual assault nurse examiner’s testimony concerning the
sexual assault examination she performed and the details that C.R. provided, which were
consistent with his testimony to the jury; the forensic interviewer’s testimony about C.R.’s
demeanor when he described the abuse to her; a child advocacy counselor’s testimony
that C.R.’s behavior and demeanor was consistent with a child who had been sexually
abused; CPS representatives detailing what C.R. told them about the allegations against
Foster; and C.R’s personal counselor’s testimony.
Further, Foster acknowledged that “sexual intercourse happened,” but she did not
believe she was in her right state of mind at the time. Foster also testified about her drug
use and her psychiatric conditions. Additionally, Foster testified that C.R. was telling the
truth about what took place.
Considering the evidence as whole, we conclude that the evidence supporting the
jury’s verdict was strong, and the two complained-of-comments did not strengthen or
detract from the evidence at trial. Moreover, Detective Foshee’s testimony did not
inherently connote C.R.’s veracity, and, given the state of the record, were fairly
innocuous. We also note the State’s limited focus on Detective Foshee’s testimony.
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Removing Detective Foshee’s comments from consideration, there remains significant
evidence supporting the jury’s finding of guilt. See Motilla, 78 S.W.3d at 355. Given the
detailed nature of C.R.’s testimony and other evidence in the record, we have fair
assurance that hearing Detective Foshee’s brief comments did not improperly influence
the jury. Thus, because the error, if any, did not have a substantial and injurious effect
or influence in determining the jury’s verdict, it did not affect Foster’s substantial rights.
Accordingly, the trial court’s error, if any, was harmless. We overrule Foster’s first two
points of error.
III. JURY CHARGE
In her last issue, Foster argues that the trial court erred by denying her requested
jury charge on voluntariness.
A. Applicable Law
A defendant is entitled, upon a timely request, to an instruction on any defensive
issue raised by the evidence, provided that the defendant timely requests an instruction
on that specific theory and the evidence raises that issue. Rogers v. State, 105 S.W.3d
630, 638 (Tex. Crim. App. 2003). “Voluntariness,” within the meaning of § 6.01(a) of the
penal code, refers only to one’s own physical body movements. See TEX. PENAL CODE
ANN. § 6.01; Rogers, 105 S.W.3d 638. “If those physical movements are the nonvolitional
result of someone else’s act, are set in motion by some independent non-human force,
are caused by a physical reflex or convulsion, or are the product of unconsciousness,
hypnosis or other nonvolitional impetus, that movement is not voluntary.” Rogers, 105
S.W.3d at 638.
B. Analysis
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A defendant’s testimony alone may be sufficient to raise a defensive theory, see
id., but Foster’s testimony did not unambiguously develop the theory that her acts were
“the nonvolitional result of someone else’s act, [were] set in motion by some independent
non-human force, [were] caused by a physical reflex or convulsion, or [were] the product
or unconsciousness, hypnosis or other nonvolitional impetus,” nor does she argue such
on appeal. See id. There was no evidence that Foster acted involuntarily, i.e., under an
external force. Id. In fact, Foster does not dispute that she engaged in intercourse with
her eleven-year-old son. Instead, she claims the jury should have been charged with
voluntariness “due to her mental state, mental health conditions, substance abuse, and
mental capacity.” However, “the issue of the voluntariness of one’s conduct, or bodily
movements, is separate from the issue of one’s mental state.” Rashann Maurice Brown
v. State, 89 S.W.3d 630, 633 (Tex. Crim. App. 2002). “All that is necessary to satisfy
Section 6.01(a) of the Texas Penal Code is that the commission of the offense included
a voluntary act.” Farmer v. State, 411 S.W.3d 901, 907 (Tex. Crim. App. 2013).
Moreover, because voluntary intoxication is not a defense to the commission of a crime,
evidence of Foster’s substance abuse does not negate the mens rea elements of intent
or knowledge, and here Foster admitted she was intoxicated when she had intercourse
with her son. See TEX. PENAL CODE ANN. § 8.04(a). Therefore, we conclude that Foster
was not entitled to a voluntariness instruction, and the trial court properly denied her
request, even when the evidence is viewed in her favor. See Farmer, 411 S.W.3d at 908.
We overrule her third issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
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JAIME TIJERINA,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
30th day of January, 2020.
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