Joseph McCormick v. the State of Texas

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

JOSEPH MCCORMICK, §
No. 08-18-00073-CR
Appellant, §
Appeal from the
v. §
143rd District Court
THE STATE OF TEXAS, §
of Reeves County, Texas
Appellee. §
(TC# 17-01-08135-CRR)
§

OPINION

A jury convicted Appellant Joseph McCormick of continuous sexual assault of a child

under the age of fourteen, a first-degree felony offense. TEX PENAL CODE ANN. §§ 21.02(a)–(c)(2,

4), (h), 22.011(c). The trial court sentenced Appellant to confinement for sixty years. This appeal

followed.

FACTUAL BACKGROUND

A.A., the child victim in this case, is Appellant’s stepdaughter. A.A. first met Appellant

when she was five years old and was later adopted by him.

The Child’s Testimony

Appellant’s last alleged incident of sexual abuse occurred one or two nights before

Appellant made her outcry on November 22, 2015. Appellant tried to touch A.A., but she began
rolling around and pretended to be asleep. Appellant touched A.A.’s female parts under her clothes

and put his fingers inside her. A.A. testified this had happened before—continuously and almost

daily—beginning when she turned eleven. Shortly before A.A.’s twelfth birthday on May 29,

2015, at around 1:00 or 2:00 a.m., Appellant picked her up, turned her sideways, put his male

sexual organ in her female part for about two to three minutes, and told her to be quiet. After she

turned twelve, Appellant made her touch “his male part.”

On November 22, 2015, A.A. began screaming at her younger sister “about what had been

going on[.]” After learning about the sexual abuse, A.A.’s sister told their mother. A.A. had not

reported her sexual abuse to any adult before her sister told their mother. A.A. told her mother

Appellant “had been sexually assaulting” her. A.A.’s mother then asked her to write a statement;

A.A. handwrote, signed, and dated a statement on November 22, 2015. A.M. asked A.A. if her

allegations were true and then called Heather McGhee, a close friend and doctor. The following

day, A.A. met McGhee in her office and spoke with her about Appellant’s repeated sexual abuse.

McGhee did not examine A.A. but asked whether she had been touched inappropriately. A.A.

confirmed the sexual abuse.

The Allegations Reported to Law Enforcement

On November 23, 2015, a report of sexual abuse of a child was made and Sergeant Jose

Angel Gonzalez of the Reeves County Sheriff’s Office was assigned to the case. That day, Sergeant

Gonzalez spoke with twelve-year old A.A. and her mother. Sergeant Gonzalez confirmed

Appellant was 27 years old at the time. His investigation documented A.A. made her outcry on

November 22, 2015, first to her younger sister, who was less than eighteen years’ old, and then to

her mother. Sergeant Gonzalez asked A.A. if she told her mother the truth, which A.A. confirmed.

The Child’s Written Statement

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 A.A.’s written statement was admitted at trial as State’s Exhibit 2 over Appellant’s hearsay

objection. A.A.’s statement reads as follows:

It started when I was 11 years old. He started with my upper parts of my body. Then
he started with the bottom part of my body. Then he started with all my body parts.
After awhile he started sticking his finger up me. He has done this for awhile [sic].
One day it was just me and him alone at the house. My mom and brother and sister
where [sic] not home. I just came inside and he told me to go in my room. He took
off my pants and underwear. I told him not to[.] I told him don’t. He did not listen.
He told me to go to sleep. When I pretended to be asleep he stuck his penus [sic]
up me. I did not know what to do. I was scared to tell. Then my mom told me a
story about this girl that got pregnat [sic] by her stepfather so I did not know what
to say. Then I turned 12 years old and it [sic] was still doing it to me. He would go
in my room at night and stick his finger up me. He would do it to me maybey [sic]
a week every month in a role [sic]. I thought he would stop. Be he would not[,] he
kept doing it to me. I did not want to tell know [sic] one about it. I was scare[d].
Then one night he went in my room again and this time he picked me up and turned
sideways and stuck his penus [sic] up in me again. I was scared that he would get
me pregnat [sic]. I was scared to tell because I did not want to ruin the relationship
with my mom and stepfather. He kept going in my room almost every night. I would
pretend to sleep and I would fight against it. Then I finally want [sic] to make it
stop. I did not want to do it anymore. He would make me touch his penus [sic] when
I pretend to be asleep. I had to much[,] I couldn’t take it. Then my sister told my
mom and I told her everything. I was so scared that he was going to do the same
thing to my brother and sister. I don’t want him to hurt me anymore. So that [sic]
what happened to me.

The Recorded Forensic Interview

An interview for A.A. was scheduled at Harmony Home, a child advocacy center. Shirley

Del Campo, a forensic interviewer at Harmony Home, interviewed A.A. on November 24, 2015.

Del Campo testified A.A. did not contradict or recant her allegations of sexual abuse. Under cross-

examination, Del Campo clarified A.A. stated the last act of sexual abuse occurred in her bedroom

on the Friday—rather than the Saturday—before her outcry. A.A. said Appellant penetrated her

female organ with his male organ twice, but Del Campo did not recall A.A. making any reference

to acts of sexual abuse occurring in the parent’s room, the living room, the barn, or the car.

Sergeant Gonzalez observed the forensic interview through a video monitor and took

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custody of the recorded interview. The recording, which was admitted into evidence over

Appellant’s objection, was published to the jury in two formats as State’s Exhibits 3 and 4.

During the recorded interview, A.A. stated Appellant touched her private parts, pointing to

her breast and groin areas. A.A. was given a drawing of the front and back of a naked child and

was asked to mark where Appellant touched her. A.A. circled the breast, genital, and buttocks

areas. The drawing was admitted into evidence and A.A. referred to it throughout the forensic

interview. A.A. explained Appellant would squeeze the marked areas and would place his finger

inside her, as she pointed to the genital area of the child in the drawing. A.A. stated Appellant last

touched her “this past Friday” while everyone was asleep. A.A. described that while wearing only

his underwear, Appellant went to her shared bedroom and stood at the side of her bed. He tried to

touch her “in all of those places” and touched her under her clothes in the marked areas of the

drawing, placing his fingers “up in [her] . . . where the boy’s parts go,” and made her touch him.

A.A attempted to “fight” Appellant and tried to get him to stop by pretending to be asleep and

tossing and turning. When Appellant finished, he went to the bathroom, washed his hands, and

returned to his room.

A.A. explained “he’s done that before a lot”—almost daily—beginning when she was

eleven, but she was too scared to tell anyone. The first episode A.A. remembered—Appellant stuck

his hand up her shirt and “squeeze[d] them” then touched her genital area beneath her clothing.

During the commission of the sexual assault over the years, if A.A.’s mother or anyone else walked

in, Appellant would pretend he was rubbing A.A.’s belly, but when Appellant touched A.A., they

were generally either alone, or everyone was asleep.

A.A. recalled the previous year Appellant took her to her room and told A.A. to go to sleep.

A.A. closed her eyes but did not sleep. Appellant took off her pants and underwear, slightly pulled

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down his pants and underwear, then “stuck his thingy”—“the boy’s private part”—in her genital

area. Appellant’s body was “going back and forth.” A.A. told him to stop, but he would not.

Appellant did this a second time after her birthday in May 2015. While A.A. was asleep in her

room, Appellant picked her up, turned her sideways, pulled down her shorts and underwear, and

stuck his “thingy” in her while he stood on the side of the bed and moved his body back and forth.

When he finished, Appellant turned A.A. back to her previous position and covered her up.

A.A. had seen Appellant’s “thingy” many times because he would grab her hand and make

her touch it. Appellant did this a lot—almost every time he went into A.A.’s bedroom, and she

would yank her hand back to make him stop. Although A.A. would toss and turn to stop Appellant

from touching her, he would not stop—he “kept trying and trying.” A.A. decided to come forward

because she “was getting ‘scareder and scareder’ [sic] every time he came into [her] room,” and

was “really uncomfortable with it.” She tried to tell her sister, but A.A.’s sister thought she was

lying and would tell her “it was just a dream.” A.A. declared it was not a dream and explained

Appellant would whisper in her ear, telling her to open her legs. A.A. never told anyone other than

her sister. When A.A. and her sister argued over it one day, their mother learned of the abuse.

The Child’s Therapist

Miriam Jansky was A.A.’s therapist for two years after her outcry. At trial, Jansky testified

to A.A.’s outcry. Without objection, Jansky explained A.A. exhibited maladaptive coping skills,

including guilt, shame, sadness, nightmares, inability to sleep, and adoption of protective behavior,

such as wearing tight pants for bed—a practice A.A. developed “to keep [Appellant] away” and

continued to use due to a traumatic need to protect herself. These maladaptive coping skills, Jansky

explained, are consistent with child sexual abuse. According to Jansky, A.A. never recanted the

sexual abuse. Jansky explained it is not uncommon for a child’s recollection of events to fluctuate

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between initial interviews and court testimony. She clarified a child’s inability to correctly

remember dates and details does not negate the occurrence of the abuse. When considering a

child’s recantation of allegations, Jansky outlined the importance of knowing whether the

recantation was made to someone with a vested interest, such as a parent or a close family friend,

as opposed to a teacher or someone perceived as helpful, but with no vested interest.

The Sexual Assault Forensic Examination

Cori Armstead was the sexual assault nurse examiner (“SANE”) who examined A.A. She

was qualified as an expert witness and described a sexual assault forensic exam (SAFE), which

includes an evaluation of a patient’s history and a physical exam.

A. History Portion of the SAFE

Armstead asked A.A. to tell her what happened and included A.A.’s responses in the SAFE

record. A.A. told Armstead Appellant first touched her when she was eleven. A.A. stated she told

her sister about Appellant’s acts, but her sister did not believe her. A.A. eventually told her mother.

In response to Armstead’s questions, A.A. stated Appellant used his hand to touch her breasts,

buttocks, and female sexual organ, and would grab her hand and make her touch his “thing.” A.A.

explained she was afraid to go to sleep because Appellant might put his “thing” in her bottom,

which hurt and made her feel “weird.” When A.A. was eleven years old, Appellant and A.A. were

home alone and Appellant took her pants off and stuck his “private” in her “private.” A.A. told

Armstead this hurt her. Appellant attempted to touch A.A. every week while her mother was

asleep, and A.A. would try to stop him by tossing and turning or pretending to be asleep.

B. Physical Examination Portion of the SAFE

During the examination, Armstead detected A.A.’s hymen had been ripped or torn to the

vaginal wall in two locations. Photographs of the interior of A.A.’s vagina was admitted into

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evidence, which Armstead referred to during her testimony. The photographs showed A.A.’s two

separate, but healed hymenal injuries. Armstead testified she documented her conclusions from

the exam and concluded A.A.’s injuries were consistent with repeated sexual assault “as per the

patient’s history[.]” Armstead explained not only did she find the two hymenal transections, but

also thinning of A.A.’s hymen, which is common from repeated penetration. Armstead did not

find any trauma to A.A.’s anus, posterior fourchette, or the labia major or minor. Under cross-

examination, Armstead agreed she could not determine when the injuries occurred or the manner

of infliction, but she explained A.A.’s injuries were caused by penetration.

Defense Witnesses

1. Nurse Practitioner Heather McGee

Heather McGhee, a family nurse practitioner, met with A.A. and her mother in November

2015. According to McGhee, A.A. was “extraordinarily angry,” would not communicate with her,

and made threats. McGhee testified A.A. answered “no” when asked whether she had been touched

inappropriately. Under cross-examination, McGhee admitted she knew A.A.’s mother and

Appellant for approximately three years and had participated in rodeos and horseback riding

activities with them. McGhee and her son—who was fifteen years old at the time of trial and knew

A.A. from school—had visited the McCormicks at their home. After meeting with A.A. at the

clinic, McGhee contacted child protective services.

2. T.M.—A Family Friend

T.M. was A.A.’s school friend. T.M. described herself as a “really close” friend of A.A.

and claimed she did not notice inappropriate behavior during her visits to A.A.’s house. T.M.

agreed that on or about February 15, 2016, A.A. told her during an online conversation that she

lied about Appellant because she was angry and upset. Under cross-examination, T.M. claimed

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she was very good friends with the McCormicks. T.M. did not save the February 15 conversation

and testified she would be surprised if A.A. acknowledged her recantation.

3. A.A.’s Mother

A.A.’s mother, A.M., testified her younger daughter informed her on November 22, 2015,

about the sexual abuse. A.M. called A.A. into the house and spoke with her. A.A. was upset and

“sobbed” as she informed A.M. that Appellant had touched her. Initially, A.A. only told A.M.

about the touching and did not mention penetration or when the abuse began. A.A. did not disclose

to her mother penetration had occurred “until . . . more of all of this started happening.” A.M. then

“did the whole mom thing” and called Appellant, threatened him, and told him not to come home.

A.M. identified State’s Exhibit 2—A.A.’s written statement—as the document she had

A.A. write at home. A.M. declared the written statement contained all the sexual abuse accusations

A.A. disclosed to her that day. A.M. claimed Appellant typically went to sleep between 9:30 and

10:00 p.m., and she would go to sleep at 10:00 or 11:00 p.m. She described the mattress of their

shared bed as springy and noisy and claimed she was a light sleeper. A.M. specified the only time

Appellant got up in the middle of the night was to adjust the thermostat. She testified she was

aware when Appellant did this and claimed Appellant would immediately return to bed. The

morning after A.A.’s outcry, A.M. took A.A. to a clinic to see McGhee. McGhee was the second

adult A.A. spoke to. Later that evening, a sheriff’s officer asked A.M. to bring A.A. to the station.

While there, A.M. disclosed A.A. had written a statement and the sheriff’s department took

personnel possession of the statement. That evening, A.A. told A.M. she did not know “it would

go this far” and “just wanted [Appellant] to move out.” A.M. stated she interpreted A.A.’s

statement as indicating nothing had happened but agreed A.A.’s statements also could be

interpreted as A.A. indicating she simply wanted “it” to be over, had regretted saying anything,

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and had wanted to “call all this off.” The following day, November 24, 2015, A.A. was interviewed

at Harmony House in Odessa, followed by a forensic examination in Midland.

A.M. testified there were times Appellant was alone with A.A. in a vehicle, the barn, the

animal pens on the McCormick property, and other locations in Reeves County. On the night A.M.

told Appellant he could not come home, Appellant slept in his truck. A.M. acknowledged

Appellant began living in their recreational vehicle located on the six-acre family property. A.A.

continued living in the home until child protective services forcefully removed her in December

2015. On re-direct, A.M. could not recall whether A.A. reported multiple incidents of penetration.

4. Y.M.—A.A.’s sister

Y.M., A.A.’s sister, was twelve years old at the time of trial. Y.M. testified she is a light

sleeper and shared a bedroom with A.A. She testified she could hear the springs of her parent’s

bed, which would wake her when they would get in and out of bed. Y.M. testified she never saw

Appellant in the bedroom at night. According to Y.M., A.A. tried to convince her Appellant had

also touched her, but Y.M. refused and maintained Appellant had never been inappropriate with

her.

DISCUSSION

In twenty-three issues, Appellant challenges his conviction. Appellant asserts legal

insufficiency, trial court error, and abuse of discretion relating to the admission of evidence, charge

error, and improper closing argument. In his final issues, Appellant challenges the charged offense

on constitutional grounds, and argues the cumulative effect of all hearsay evidence and the

cumulative effect of all the errors require reversal. We affirm.

I. Legal Sufficiency

In his first issue, Appellant claims the evidence is legally insufficient to support his

9
conviction beyond a reasonable doubt. Appellant asserts A.A. provided “four different stories”

describing varied patterns of alleged abuse, which is contradicted by the testimony provided at

trial.

Standard of Review

Under the Due Process Clause of the U.S. Constitution, the State is required to prove every

element of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-

19 (1979). The critical inquiry in a legal sufficiency challenge is whether the evidence in the record

could reasonably support a conviction of guilt beyond a reasonable doubt. Jackson, 443 U.S. at

319; Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007).

When reviewing the legal sufficiency of the evidence, we must view all the evidence in the

light most favorable to the verdict to determine whether any rational juror could have found the

defendant guilty of the essential elements of the offense beyond a reasonable doubt. Salinas v.

State, 163 S.W.3d 734, 737 (Tex.Crim.App. 2005). A lack of direct evidence is not dispositive on

the issue of the defendant’s guilt; guilt may be established by circumstantial evidence alone.

Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004). We measure the evidence by the

elements of the offense as defined by a hypothetically correct jury charge. Thomas v. State, 303

S.W.3d 331, 333 (Tex.App.—El Paso 2009, no pet.)(citing Malik v. State, 953 S.W.2d 234, 240

(Tex.Crim.App. 1997)). A hypothetically correct charge accurately sets out the law, is authorized

by the indictment, does not unnecessarily restrict the State’s theories of liability, and adequately

describes the offense for which the defendant was tried. Malik, 953 S.W.2d at 240.

We bear in mind the trier of fact is the sole judge of the weight and credibility of the

evidence, and we must presume the fact finder resolved any conflicting inferences in favor of the

verdict and we defer to that resolution. Dobbs v. State, 434 S.W.3d 166, 170 (Tex.Crim.App. 2014)

10
(citing Jackson, 443 U.S. at 319). A reviewing court may not reevaluate the weight and credibility

of the evidence or substitute its judgment for that of the fact finder. Isassi v. State, 330 S.W.3d

633, 638 (Tex.Crim.App. 2010). Our only task under this standard is to determine whether, based

on the evidence and reasonable inferences drawn therefrom, a rational juror could have found the

essential elements of the crime beyond a reasonable doubt. Id.

Applicable Law

Guilt of the offense of continuous sexual abuse of a child will be found if (1) a person, (2)

who is seventeen years or older, (3) commits a series of two or more acts of sexual abuse, (4)

during a period of thirty or more days, and (5) each time the victim was younger than fourteen

years old. TEX.PENAL CODE ANN. § 21.02(b)–(d); Casey v. State, 349 S.W.3d 825, 829

(Tex.App.—El Paso 2011, pet. ref’d). Regarding the alleged acts, the Court of Criminal Appeals

has explained:

The statutory language reflects that the Legislature intended to permit one
conviction for continuous sexual abuse based on the repeated acts of sexual abuse
that occur over an extended period of time against a single complainant, even if the
jury lacks unanimity as to each of the particular sexual acts or their time of
occurrence, so long as the jury members agree that at least two acts occurred during
a period that is thirty or more days in duration.

Price v. State, 434 S.W.3d 601, 605–06 (Tex.Crim.App. 2014).

Here, the indictment alleged:

[D]uring a period that was 30 days or more in duration, to wit: from on or about
June 1, 2014 through on or about November 20, 2015, when the defendant was 17
years of age or older, commit two or more acts of sexual abuse against a child
younger than 14 years of age, namely, indecency with a child by touching the
genitals of AA, a pseudonym, and by aggravated sexual assault by causing the
penetration of the sexual organ of AA, a pseudonym, by the sexual organ of
Defendant[.]

The indictment alleged incidents of indecency with a child and aggravated sexual assault

as the underlying “act of sexual abuse” for the offense of continuous sexual abuse of a child.

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TEX.PENAL CODE ANN. § 21.02(c)(2), (4). A person commits the offense of indecency with a child

by sexual contact if the person engages in sexual contact with a child younger than seventeen years

of age. Id. § 21.11(a)(1). Regarding the underlying offense of indecency with a child, the term

“sexual contact” means any touching of the anus, breast, or any part of the genitals of another

person with intent to arouse or gratify the sexual desire of any person. Id. §§ 21.01(2), 21.02(c)(2)

(restricting the underlying act of indecency under Section 21.02(c)(2) to those the actor committed

in a manner other than by touching, including touching through clothing, the breast of a child). A

person commits aggravated sexual assault when he intentionally, or knowingly causes the

penetration of the anus or sexual organ of a child by any means and the victim is younger than

fourteen years of age, regardless of whether the person knows the age of the victim at the time of

the offense. Id. § 22.021(a)(1)(B), (a)(2)(B).

Thus, under a hypothetically correct jury charge, the State was required to prove, beyond

a reasonable doubt, that Appellant, while seventeen years of age or older, committed two or more

acts of sexual abuse against A.A., a child younger than fourteen years of age, either by indecency

with a child by touching A.A.’s genitals, or aggravated sexual assault by the penetration of the

sexual organ of A.A. by the sexual organ of Appellant, or both, during a period that is more than

thirty days in duration. TEX.PENAL CODE ANN. § 21.02(b)–(c).

Analysis

Appellant complains of contradictions in A.A.’s evidence, according to him, amount to

legal insufficiency. He first asserts, in A.A.’s recorded forensic interview with Del Campo at

Harmony Home, A.A. circled the “butt” area on the drawing but did not mention this body part in

her statement to her mother. Appellant points out that during the recorded forensic interview, A.A.

alleged Appellant made her touch his penis many times, would put his hand up her shirt and

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squeeze “them[,]” and Appellant would pretend to rub her belly if someone walked in while he

was touching her, but none of these assertions were included in A.A.’s written statement. He also

complains A.A.’s terminology describing Appellant’s male sexual organ in her written

statement—“penus”—differs from the terminology used during her recorded forensic interview—

“private parts” and “thingy”—and A.A.’s supposed indication to Del Campo she did not know the

terminology for that part of the male anatomy.

Appellant asserts A.A.’s testimony at trial differs from her written statement—Appellant

penetrated her with his sexual organ on a single occasion before her twelfth birthday, penetrated

her vagina with his finger, and no other type of sexual abuse had occurred—was contrary to what

she alleged in her written statement and to Armstead during the SAFE. He complains A.A. first

disclosed at trial, and not before, Appellant sexually abused her in his bedroom, the barn, and the

car. Appellant further claims A.A. was unaware of a specific attribute on his penis that related to

a medical condition, and it follows “[i]f Appellant had really assaulted A.A., surely [she] would

have known of this deformity[.] Finally, Appellant contends A.A.’s declarations to McGhee and

T.M. of “no sexual abuse” and that she “had lied” along with “other serious deficiencies” rendered

the evidence legally insufficient. We disagree.

Appellant first abused A.A. when she was eleven years old. She believed Appellant was

“[i]n his 30s” at that time. Appellant’s last act of sexual abuse upon A.A. occurred one or two

nights before her outcry to her mother. Appellant entered the sisters’ bedroom and attempted to

touch A.A., but she began rolling around and pretended to be asleep. A.A. testified for the next

five minutes, Appellant touched A.A.’s female parts under her clothes where she uses the restroom

and put his finger inside her. A.A. testified this had happened before—continuously and almost

daily—since she had turned eleven years old. A.A. further testified that one week or so before her

13
twelfth birthday, at around 1:00 a.m. or 2:00 a.m., Appellant picked her up, turned her sideways,

and put his male sexual organ in her female sexual organ for about two to three minutes. After

A.A. turned twelve, Appellant entered A.A.’s room and made her touch “his male part.”

On November 22, 2015, A.A. revealed to her mother Appellant had been sexually abusing

her. That same day, A.A. prepared a written statement detailing the sexual abuse at the request of

her mother. At trial, after refreshing her memory with her written outcry statement, A.A. admitted

there were some things in her statement she did not remember. A.A. acknowledged under cross-

examination, during her forensic interview at Harmony House, she may have reported Appellant

had twice placed his sexual organ in her sexual organ. She also admitted in her November 22,

2015, written statement, she stated Appellant had twice placed his “penus” in her—once when she

was eleven and again after she turned twelve. A.A. confirmed Appellant was over the age of

seventeen when he committed these acts. Over Appellant’s objections, A.A.’s written statement

and recorded forensic interview were admitted into evidence, and the recorded forensic interview

was published to the jury.

The testimony of a child victim alone is sufficient to support a conviction for continuous

sexual abuse of a child. See TEX.CODE CRIM.PROC.ANN. art. 38.07(a). Our duty is to ensure that

the evidence presented supports the jury’s verdict. Montgomery v. State, 369 S.W.3d 188, 192

(Tex.Crim.App. 2012). When the record supports contradicting inferences, as is the case here, we

presume the jury resolved those conflicts in favor of the verdict. Id. At trial, A.A. testified

Appellant “would go into our room, and . . . would hurt me, but I would make sure he wouldn’t

hurt [my sister.]” A.A. testified in detail to the continuous sexual abuse and the jury was free to

believe or disbelieve her testimony. Dobbs, 434 S.W.3d at 170. During the investigation, A.A.

spoke to law enforcement, medical personnel, child protective services personnel, and others about

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Appellant’s acts, many of whom testified on behalf of the State.

A.A.’s testimony, her written statement, her recorded forensic interview, the testimony of

the State’s witnesses, coupled with other evidence in the record, establishes Appellant, while over

the age of seventeen, committed acts of sexual contact upon A.A. while she was eleven and twelve

years old, including one or more acts of indecency with a child and one or more acts of aggravated

sexual assault of a child, during a period that spanned more than thirty days. We defer to the jury’s

determinations on the credibility of witnesses and the weight given to their testimony, as we are

required to do, and based on the cumulative force of all the evidence when viewed in the light most

favorable to the verdict, we conclude a rational trier of fact could have found the essential elements

of the offense beyond a reasonable doubt. Issue One is overruled.

II. Evidentiary Challenges

In most of his remaining issues, Appellant challenges the trial court’s evidentiary rulings. 1

Standard of Review

We review the trial court’s decision to admit or exclude evidence—as well as its decision

as to whether the probative value of evidence was substantially outweighed by the danger of unfair

prejudice—under an abuse of discretion standard. Gonzalez v. State, 544 S.W.3d 363, 370

(Tex.Crim.App. 2018). “A trial judge abuses her discretion when her decision falls outside the

zone of reasonable disagreement.” Henley v. State, 493 S.W.3d 77, 82–83 (Tex.Crim.App. 2016).

We may not substitute our decision for that of the trial court. Moses v. State, 105 S.W.3d 622, 627

(Tex.Crim.App. 2003). Reversal is required when we “find the trial court’s ruling was so clearly

wrong as to lie outside the zone within which reasonable people might disagree.” Henley, 493

S.W.3d at 83. We will uphold an evidentiary ruling if it is correct on any theory of law applicable

1
We set forth only once the applicable standards of review and law governing the admission of hearsay evidence and
preservation of error, and refer to them, when necessary, in our analysis of each of Appellant’s issues.

15
to the case. Gonzalez v. State, 195 S.W.3d 114, 126 (Tex.Crim.App. 2006).

Evidentiary errors generally constitute non-constitutional error which we review under

Rule 44.2(b). TEX.R.APP.P. 44.2(b); Gonzalez, 544 S.W.3d at 373. We disregard non-

constitutional errors that do not affect a criminal defendant’s “substantial rights.” TEX.R.APP.P.

44.2(b); Casey v. State, 215 S.W.3d 870, 884-85 (Tex.Crim.App. 2007). An error does not affect

a substantial right if, after examining the entire record, we have a fair assurance that the error did

not have a substantial and injurious effect or influence in determining the jury’s verdict. Casey,

215 S.W.3d at 885. In making this determination, we consider: (1) the character of the alleged

error and how it might be connected to 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 complained of error. Gonzalez, 544 S.W.3d at 373. When the trial court

overrules an evidentiary objection, any error in the ruling is harmless and is not reversible when

the same evidence has been admitted elsewhere without objection. Leday v. State, 983 S.W.2d

713, 717–18 (Tex.Crim.App. 1998).

Applicable Law

1. Preservation of Error

Rule 33.1 of the Texas Rules of Appellate Procedure governs error preservation and

provides that, to preserve error, a complaint must be “made to the trial court by a timely request,

objection, or motion that . . . state[s] the grounds for the ruling that the complaining party sought

from the trial court with sufficient specificity to make the trial court aware of the complaint, unless

the specific grounds were apparent from the context[.]” TEX.R.APP.P. 33.1(a)(1)(A). Although no

“hyper-technical or formalistic use of words or phrases” is required to preserve error, the

complaining party must notify the trial judge about what he wants, why he thinks he is entitled to

16
it, and must do so clearly enough for the judge to understand him at a time when the judge is in

the proper position to do something about it. Golliday v. State, 560 S.W.3d 664, 670

(Tex.Crim.App. 2018)[Internal quotations omitted]. The record must show the trial court ruled on

the party’s request, objection, or motion, either expressly or implicitly, or refused to rule and that

the complaining party objected to the trial court’s refusal. TEX.R.APP.P. 33.1(a)(2). To preserve

error in admitting evidence, a party must object each time the alleged inadmissible evidence is

offered or obtain a running objection. Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App. 2003).

An error in the admission of evidence is cured where the same evidence comes in elsewhere

without objection. Id. The requirement of error preservation “generally applies to all complaints

except those that involve rules that are ‘waivable only’ or ‘systematic’ (or ‘absolute’)

requirements.” London v. State, 490 S.W.3d 503, 507 (Tex.Crim.App. 2016). “[A]ll other

complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with

Rule 33.1(a).” Mendez, 138 S.W.3d at 342.

The Court of Criminal Appeals has “consistently held that the failure to object in a timely

and specific manner during trial forfeits complaints about the admissibility of evidence.” Saldano,

70 S.W.3d at 889. An appellant must have made a proper and specific objection at the time the

evidence was offered or excluded to preserve his right of review of that evidentiary claim. Moff v.

State, 131 S.W.3d 485, 489 (Tex.Crim.App. 2004). The point of error on appeal must comport

with the objection made at trial. Clark v. State, 365 S.W.3d 333, 339 (Tex.Crim.App. 2012);

Thomas v. State, 723 S.W.2d 696, 700 (Tex.Crim.App. 1986).

2. Outcry Statements

The Legislature enacted Article 38.072, the “outcry statute,” to address the trauma that

child victims of sexual or physical abuse may experience when testifying about their abuse.

17
TEX.CODE CRIM.PROC.ANN. art. 38.072; Martinez v. State, 178 S.W.3d 806, 810–11

(Tex.Crim.App. 2005). Article 38.072 permits the testimony of the outcry witness, the first adult

who is eighteen years of age or older—other than the defendant—to whom the child made a

statement describing the alleged offense. TEX.CODE CRIM.PROC.ANN. art. 38.072, §§ 2(a),(b);

Martinez, 178 S.W.3d at 811 n.15. Essentially, Article 38.072 serves as a statutory hearsay

exception and allows hearsay evidence of a complainant when a defendant has been charged with

certain offenses—including sexual offenses—against a child under the age of fourteen. TEX.CODE

CRIM.PROC.ANN. art. 38.072, §§ 1, 2; Sanchez v. State, 354 S.W.3d 476, 484 (Tex.Crim.App.

2011).

Under this provision, the child’s out-of-court statement—an “outcry”—is admissible if it

is a description of the offense and is offered by the first person over the age of eighteen to whom

the child disclosed the offense—the “outcry witness.” Sanchez, 354 S.W.3d at 484. Under Article

38.072, the child must have described the alleged offense in some discernable manner and must

give more than “a general allusion that something in the area of child abuse was going on.” Garcia

v. State, 792 S.W.2d 88, 91 (Tex.Crim.App. 1990). Outcry statements from multiple witnesses

may be admissible under the statute if each witness testifies about different incidents of abuse. See

Lopez v. State, 343 S.W.3d 137, 140 (Tex.Crim.App. 2011). Evidence admitted under Article

38.072 is restricted to the live testimony of a properly designated outcry witness and does not

include a complainant’s video-recorded statement. 2 Bays v. State, 396 S.W.3d 580, 581, 586–88,

592 (Tex.Crim.App. 2013)(observing that the Court has repeatedly described the form of outcry

evidence to be testimony from a witness and holding that the Legislature did not intend the

2
Article 38.071, the “video statute” governs the admissibility of a child-victim’s pretrial recorded statements and
creates a hearsay exception for the pretrial video or audio recorded statements of a child, subject to stringent
requirements. TEX.CODE CRIM.PROC.ANN. art. 38.071; Bays, 396 S.W.3d at 588–89.

18
admission of video recordings under the statute). The use of such statements is limited, and the

child must testify at trial or be available to testify. TEX.CODE CRIM.PROC.ANN. art. 38.072,

§ 2(b)(3); Martinez, 178 S.W.3d at 811.

To admit evidence under Article 38.072, the State must notify the defendant of its intent to

call an outcry witness, identify the witness, and provide a summary of the outcry statement.

TEX.CODE CRIM.PROC.ANN. art. 38.072, § 2(b)(1). The trial court must then conduct a hearing

outside the presence of the jury and determine whether the complainant’s out-of-court statement

is reliable based on the time, content, and circumstances 3 of the statement, and the complainant

must either testify or be available to testify at the proceeding. Id. at § 2(b)(2–3).

Relevant Portion of the Record

The State provided Appellant notice of its intent to admit A.A.’s verbal outcry statement

and handwritten statement. Appellant filed a written pretrial objection arguing Shirley Del Campo

of Harmony Home was not the first person over the age of eighteen to whom A.A. made an outcry

statement and objected to the application of Article 38.072. Appellant sought restriction of the

application of Article 38.072 to the initial verbal statements A.A. made to her mother during the

initial outcry but had no objections to the State’s intent to use statements A.A. made to Sergeant

Gonzalez.

During a pretrial hearing, Appellant reiterated his written objection. The State argued A.M.

was the first person over eighteen to whom A.A. made a claim of sexual abuse and agreed when

multiple outcry statements are made, a more substantive statement of outcry controls over less

specific outcry allegations. The State also argued A.A.’s written outcry statement was an

3
“The phrase ‘time, content, and circumstances’ refers to the time the child makes the statement to the proffered
outcry witness, the content of the statement, and the circumstances surrounding the making of the statement.” Carty
v. State, 178 S.W.3d 297, 306 (Tex.App.—Houston [1st Dist.] 2005, pet. ref’d). The issue is whether the child’s outcry
statement is reliable, not whether the outcry witness is credible. Sanchez, 354 S.W.3d at 487–88.

19
immediate continuation of her verbal outcry to her mother, which she prepared within the same

“time frame” of her verbal outcry. The State argued A.A.’s written statement was the best evidence

because she fully described the specific acts of sexual abuse she disclosed to her mother.

In a hearing outside the presence of the jury, Appellant agreed A.A.’s written outcry

statement was prepared contemporaneously with her oral outcry to her mother and declared, “So

we don’t object as much to the written statement being included with the Code of Criminal

Procedure section; however, anything said to Shirley Del Campo, we strenuously object to the

hearsay exception provided by 38.072.” The trial court sustained Appellant’s objection to Del

Campo being offered as an expert outcry witness under Article 38.072. Appellant did not secure a

ruling on his objection to the State’s intended use of A.A.’s written statement.

At trial, A.A. testified she first told her mother, who is over the age of eighteen, that

Appellant had “sexually assault[ed]” her and, at her mother’s request, prepared a written statement

describing Appellant’s acts of sexual abuse. A.A. identified her written statement, which was

designated as State’s Exhibit 2. A.M. testified as a defense witness, and the State did not call her

as the sponsoring witness of A.A.’s outcry and written statements. The State sought to admit

A.A.’s written outcry statement through Sergeant Gonzalez, the officer whom A.M. provided

A.A.’s written statement to. Appellant objected to the admission of the written outcry statement

on grounds of hearsay “not subject to any exception, including the [statutory] outcry exception

provided by the Code of Criminal Procedure.” However, contrary to his initial pretrial concession

the written outcry statement was contemporaneous with A.A.’s verbal outcry to her mother,

Appellant argued any writing produced after the verbal outcry did not fall within a hearsay

exception. Appellant did not object to the admission of A.A.’s written statement on the basis the

trial court did not conduct an Article 38.072 hearing outside the presence of the jury.

20
 The State countered oral, written, and recorded outcry statements are admissible and A.A.’s

outcry statement collectively consisted of both her oral and contemporaneous written statements.

The trial court overruled Appellant’s objection and admitted A.A.’s written statement.

Issues Two and Four: Article 38.072 Outcry Reliability Hearing and Admissibility of
A.A.’s Written Statement as Qualified Outcry Statement

In his second issue, Appellant asserts the trial court abused its discretion by admitting

A.A.’s videotaped forensic interview at Harmony House and A.A.’s written statement as outcry

evidence because the trial court failed to comply with Article 38.072. TEX.CODE CRIM.PROC.ANN.

art. 38.072(b)(2). Although we agree with the State Appellant’s second issue is multifarious,

Appellant has abandoned his complaint the trial court erred by admitting the recorded forensic

interview. Thus, our analysis is restricted to the alleged erroneous admission of A.A.’s written

statement.

Appellant argues the trial court erred in failing to conduct a hearing when it considered

whether A.A.’s outcry statement was reliable in accordance with Article 38.072, § 2(b)(2).

TEX.CODE CRIM.PROC.ANN. art. 38.072, § 2(b)(2). The State admits the trial court was required to

conduct a hearing outside the presence of the jury to determine the reliability of the outcry

statement, however, the State argues A.A. testified to preparing the written statement and affirmed

it was accurate, true, and correct. For these reasons, the State asserts a trial court ruling on the

reliability of the written statement would have constituted either an abuse of discretion, a comment

on the weight of the evidence, or both. Thus, the State maintains A.A.’s written statement satisfied

the requirements of Article 38.072.

The record reflects neither side requested an Article 38.072 hearing nor did the trial court

hold a hearing regarding the reliability of A.A.’s statement. As the proponent of the hearsay

evidence, the State bears the burden to satisfy each element of Article 38.072 or must provide some

21
other hearsay exception. Long v. State, 800 S.W.2d 545, 548 (Tex.Crim.App. 1990). Appellant

does not bear the burden of requesting a hearing outside the presence of the jury on the issue of

the reliability and thus, did not waive his right to review by failing to request such hearing. Id.; see

also White v. State, 549 S.W.3d 146, 151–52 (Tex.Crim.App. 2018). Rather, Appellant’s hearsay

objection sufficiently preserved error. Long, 800 S.W.2d at 548.

The requirements of Article 38.072 are mandatory. Id. at 547. The trial court abuses its

discretion if it admits outcry witness testimony without first conducting a hearing on the reliability

of the statement in compliance with Section 2(b)(2) of Article 38.072. TEX.CODE CRIM.PROC.ANN.

art. 38.072, § 2(b)(2); Duncan v. State, 95 S.W.3d 669, 671 (Tex.App.—Houston [1st Dist.] 2002,

pet. ref’d). Because the trial court failed to make a reliability determination in compliance with

Article 38.072, error occurred unless the statement was admissible under another hearsay

exception. Long, 800 S.W.2d at 548.

On appeal, the State urges, as it did at trial, that it was not required to introduce A.A.’s oral

outcry to her mother but was permitted to offer A.A.’s written outcry statement as substantive

evidence. The State argues a “statement” under Texas Rule of Evidence 801(a) is “a person’s oral

or written verbal expression” and therefore argues that A.A.’s written outcry statement constitutes

a “statement.” TEX.R.EVID. 801(a). Appellant maintains A.A.’s handwritten statement does not

constitute an outcry statement. Appellant raises the same complaint in Issue Two and Four,

therefore we address both together.

Analysis

For our analysis, we assume without deciding, A.A.’s written statement is not a proper

outcry statement, is not admissible under any exception to the hearsay rule, and was improperly

admitted without an Article 38.072 reliability hearing. However, despite Appellant’s contentions,

22
the record shows that the same, or substantially the same evidence set forth in A.A.’s written

statement, was admitted without objection during A.A.’s testimony. Without objection, A.A.

testified to several acts of sexual abuse she suffered. Appellant “put his male part inside of [hers]”

before she turned twelve. After A.A. turned twelve, Appellant made her touch his “male part.”

Appellant touched A.A. and penetrated her where she uses the bathroom with his finger within

days of her outcry, and A.A. specified this first occurred when she was eleven and continued

almost daily. In her written statement, A.A. confirmed Appellant began touching her

inappropriately when she was eleven. A.A. described Appellant penetrated her with his finger and

had done this “for awhile.” On one occasion, Appellant penetrated her with his “penus.” When she

turned twelve, Appellant “was still doing it to [her].” Appellant would enter A.A.’s room at night

and penetrate her with his finger “maybe a week every month in a row.” On another occasion,

Appellant again penetrated her with his “penus.” A.A. disclosed Appellant would make her touch

his “penus.”

While we recognize A.A. testified to a single occasion of sexual penetration of her sexual

organ by Appellant’s sexual organ, however, A.A. further testified three methods and means of

sexual abuse occurred on different occasions while she was eleven and twelve years old. Her

written statement described the same methods and means of sexual abuse she suffered at the ages

of eleven and twelve. Again, even if A.A.’s written statement was inadmissible at trial, its contents

present the same or substantially the same evidence to which A.A. testified at trial. Accordingly,

we hold the trial court’s error in failing to determine the reliability of the statement in a hearing

outside the presence of the jury was harmless because other evidence at trial proved the same facts.

See Leday, 983 S.W.2d at 717–18; Anderson v. State, 717 S.W.2d 622, 627-28 (Tex.Crim.App.

1986)(holding that the admission of inadmissible evidence is harmless if other evidence that proves

23
the same facts is admitted at trial without objection). Issues Two and Four are overruled.

Issue Three: Recorded Forensic Interview

In Issue Three, Appellant claims the trial court erred when it admitted A.A.’s recorded

forensic interview at Harmony House because it was inadmissible under Article 38.071—the rule

of optional completeness.

Applicable Law

Rule 107 of the Texas Rules of Evidence provides:

If a party introduces part of an act, declaration, conversation, writing, or recorded
statement, an adverse party may inquire into any other part on the same subject. An
adverse party may also introduce any other act, declaration, conversation, writing,
or recorded statement that is necessary to explain or allow the trier of fact to fully
understand the part offered by the opponent. ‘Writing or recorded statement’
includes a deposition.

TEX.R.EVID. 107. This rule permits otherwise inadmissible evidence admissible when that

evidence is necessary to fully and fairly explain a matter the adverse party has “opened up.”

Credille v. State, 925 S.W.2d 112, 116 (Tex.App.—Houston [14th Dist.] 1996, pet. ref’d). The

purpose of Rule 107 is to reduce the possibility of confusion, distortion, or false impressions

arising from the introduction of part of a writing, tape, or conversation out of context. Id. The

otherwise inadmissible statement must be on the same subject and necessary to make the other

statement fully understood. Sauceda v. State, 129 S.W.3d 116, 123 (Tex.Crim.App. 2004).

However, a recording is unnecessary, for example, if it is offered merely to demonstrate the

absence of a statement by the complainant rather than the existence of a directly contradictory

statement. See id. at 121–22.

Relevant Portion of the Record

Del Campo, the forensic interviewer, testified at trial. Del Campo explained she received

information a criminal offense had been alleged. She interviewed A.A. testifying she abstained

24
from suggestive, leading questions, and followed interview protocol. The interview was recorded,

and Del Campo confirmed A.A. did not recant her statements.

During cross-examination, Del Campo testified:

Q. Do you recall any of the specifics of the particular interview involved in this
case?

A. I do.

Q. Have you reviewed some notes to refresh your memory in anticipation of
testifying today?

A. Yes, due to it being two – two years ago.

Q. Been a while. There was some concern earlier as to whether the last instance of
misconduct before the outcry was on the Friday or Saturday before. Do you recall
which day it occurred on?

A. It was the Friday before.

Q. So the Friday, not the Saturday?

A. Correct.

Q. All right. Are you aware of any – where the misconduct occurred, the locations?

A. In the home.

Q. But more specifically where at in the home?

A. In the child’s room.

Q. Only in the child’s room?

25
 A. From what I can recall, yes.

Q. Do you recall any reference to the parents’ room, the living room?

A. No.

Q. Or the barn or car?

The State objected and explained, “I’ve taken some leave to permit him to ask the questions, but

this is obviously asking for hearsay from – in fact, he asked her, ‘Have you seen the video, the

statement and do you remember what was said?’” In response, Appellant argued his questions

were not asked for the truth of the matter asserted, but for the purpose of impeaching A.A.’s earlier

testimony. The trial court overruled the State’s hearsay objection, and Appellant continued:

Q. And Ms. Del Campo, I’m asking specifically because there was testimony earlier
today that this misconduct occurred in her room, Joseph’s room, the living room,
the barn, and the car, and I was just curious as to whether or not that’s consistent
with what was told to you [during A.A.’s recorded forensic] interview.

A. From what I can recall per the interview, it was mainly the instance – the things
that had occurred happened in the child’s bedroom.

Q. Thank you. And earlier today, there was testimony that actual penetration by the
male in the female organ only occurred on one instance. Is that consistent with
what was said during the interview?

A. During the interview, it was stated by the child that it happened twice.

Q: No further questions, Your Honor.

The State recalled Sergeant Gonzalez and sought to have A.A.’s recorded forensic

interview admitted. Appellant objected to the admission stating, “[t]he content of that video was

particularly referenced pretrial in the defendant’s objections to the outcry statement notice and

were sustained as to Shirley Del Campo.”

The trial court excused the jury and the following occurred:

26
 THE COURT: I didn’t mean to cut you off, but since we were going into an area
that had previously been ruled on in the context of a limine motion in pretrial, the
Court wanted to conduct the remainder of this outside the presence of the jury. And
the jury has been excused and is no longer in the courtroom. If you would please
restate your objection to the admissibility of State’s Exhibit 3, the [recorded
forensic interview] video.

[Defense Counsel]: Yes, Your Honor. The content of the video constitutes hearsay,
not subject to any exception. The only exception it could possibly constitute would
have been if the State’s intent to use it as an outcry statement were allowed;
however, defendant’s objections to that notice were sustained as to Shirley Del
Campo [who is] the interviewer in the video with the child. I believe the State is
trying to offer this exhibit to bolster the truthfulness of the victim after it’s been
attacked by impeachment, but I don’t believe this constitutes proper evidence of
truthfulness. It is just an interview. There is no evidence of truthfulness there.

THE COURT: Response?

[The State]: Yes, Your Honor. The State certainly would object to any claim that
we are violating any motion in limine. We did not offer it as an outcry statement as
an exception to hearsay under 38.072. We’re offering it both under 38.071, the
actual person who gave the statement has testified. He’s subject to further
testifying. But further, this is the Rule of Optional Completeness and opening that
proverbial door. I even objected about asking what’s contained in that video, but in
order to impeach his prior witness, [defense counsel] elicited information of what
that video said and as the State, we believe now that video comes in. [The jury]
should see the whole context to understand it compared to the testimony they’ve
already heard that he’s trying to impeach.

THE COURT: Further argument?

[Defense Counsel]: Your Honor, the specific instance as referenced in the video
went directly to specific pieces of testimony offered by the victim previously. In no
way does that merit the entire video being admitted into evidence. It’s unduly
prejudicial under Rule 403. I do nonetheless believe it still constitutes hearsay.

THE COURT: The objection is overruled. Note your exception. State’s Exhibit 3 is
admitted.

Appellant did not identify any inadmissible portions of the recorded forensic interview, nor

did he seek to have any portions of the recording withheld from publication to the jury.

Analysis

By asking Del Campo to testify regarding specific statements A.A. made to her during the

27
recorded interview, Appellant sought to impeach A.A.’s credibility by suggesting A.A.’s

statements to Del Campo were inconsistent. This is analogous to the facts in Credille v. State. In

Credille, Credille sought to impeach the credibility of a child complainant by cross-examining the

police officer who interviewed the child. 925 S.W.2d at 116. Credille inquired about specific

statements the child made during the interview, and the State established the statements came from

a recorded interview and successfully introduced the entire recording into evidence. Id. The

Fourteenth Court of Appeals upheld the trial court’s ruling under Rule 107. See TEX.R.EVID. 107;

Credille, 925 S.W.2d at 117. The court concluded the inquiry of the videotaped conversation

entitled the State the right to reply and offer any other evidence that was necessary to make the

conversation fully understood. Id. The Court of Criminal Appeals examined this holding in

Sauceda, and ultimately determined Credille had been correctly decided because specific

statements made by the complainant during the interview, when taken out of context, could have

given the jury a false impression by hearing only a portion of the conversation. Sauceda, 129

S.W.3d at 123.

Appellant relies on Long v. State to support his contention the State failed to timely object

to the inadmissible hearsay and therefore cannot “mitigate damage done by the very inadmissible

evidence that he willingly allowed to be introduced.” 10 S.W.3d 389, 398–99 (Tex.App.—

Texarkana 2000, pet. ref’d). In Long, Long repeatedly failed to object to inadmissible evidence—

evidence that his co-defendant failed a polygraph exam—and did not request a mistrial. Id. at 399.

The court declared an objection from Long would have entitled him to a mistrial. Id. The court

explained its consideration of the harm resulting from the witness testimony, which revealed the

defendant’s polygraph test results, was so great it could not be cured by an instruction to disregard.

Id. Instead, the court observed, Long attempted to use Rule 107 to mitigate the damage that arose

28
from the very evidence he allowed the State to introduce. Id. The court established Rule 107 does

not allow a party who has failed to object to inadmissible evidence to present additional improper

evidence “under the guise of rebuttal” and cited to cases regarding impeachment of a person’s

character. Id. The court found it was not error for refusing to allow Long to clarify why his co-

defendant failed the polygraph. Id. at 400.

In this case, Appellant’s questions to Del Campo regarding A.A.’s specific statements

during the recorded interview challenged A.A.’s credibility and the consistency of her details,

including the location of A.A.’s reported assaults and how often penile penetration occurred.

Unlike in Long, the State objected after Del Campo was asked whether A.A. stated she had been

sexually abused in the barn or car, and Appellant countered he was attempting to impeach A.A.’s

prior testimony; the trial court overruled the State’s hearsay objection. We find the State was not

seeking to impeach the testimony of A.A. or Del Campo “under the guise of rebuttal.” Rather, this

testimony created the potential to confuse the jury and create false impressions, which is what Rule

107 is designed to counter. The trial court reasonably could have found the admission necessary

to place A.A.’s specific statements in context of the entire interview. Credille, 925 S.W.2d at 117.

We conclude the trial court did not abuse its discretion by admitting the entire videotaped recording

under Rule 107.

Appellant also argues the recorded forensic interview was inadmissible under Article

38.071 of the Texas Code of Criminal Procedure. TEX.CODE CRIM.PROC.ANN. art. 38.071. The

State does not address the application of Article 38.071, and we conclude it does not apply here.

Article 38.071 is commonly known as the “video statute.” See Bays, 396 S.W.3d at 588. Article

38.071 governs the admissibility of a child victim’s pretrial recorded statements and creates a

hearsay exception only if stringent requirements are met, such as the child must be unavailable to

29
testify. TEX.CODE CRIM.PROC.ANN. art. 38.071, §§ 1, 2, 5; Bays, 396 S.W.3d at 588–89. Here,

A.A. was available to testify and Article 38.071 is inapplicable. A.A.’s recorded forensic statement

was therefore not admissible under Article 38.071.

Conversely, Appellant maintains the State failed to prove the recorded forensic interview

was admissible under a hearsay exception. We disagree and conclude the trial court acted within

its discretion when it applied Rule 107. Appellant further complains the State failed to explain why

the entirety, rather than a portion of A.A.’s recorded forensic interview, was necessary to supply

an omitted part of the recording on the same subject, or necessary to make the evidence fully

understood. Again, as we have set out, Appellant’s questions challenged A.A.’s credibility during

her interview with Del Campo, and the recorded interview became necessary to give the jury

context of the entire interview. See Credille, 925 S.W.2d at 117 (explaining although defense

counsel only inquired into specific of the conversation between the child victim and the

interviewer, he challenged the child’s credibility and “it was necessary to show the specific

instances in the context of the entire interview”).

Appellant relies on Sauceda v. State to support his contention A.A.’s recorded forensic

interview was inadmissible under Rule 107. 129 S.W.3d at 124. In Sauceda, the defense indicated

it intended to call the forensic interviewer to testify that one of the child complainants in the case

had not mentioned specific allegations during the recorded interview. Id. at 118. Defense counsel

argued for the exclusion of the recorded interview because it contained references to extraneous

offenses involving Sauceda’s other nieces. Id. The court agreed with the State’s assertion the entire

recording would be admissible if the forensic interviewer testified. Id. at 119. The court of appeals

determined the trial court did not err. Id. The Court of Criminal Appeals disagreed, and found the

entire interview was necessary to prove a particular topic was not included in the interview;

30
however, the court drew a distinction, and that distinction applies here. Id. In Sauceda, the State

relied on Credille, and the Court of Criminal Appeals recognized Credille differed from Sauceda

in one important respect: Credille’s defense counsel directed his examination to specific statements

the child complainant made during the forensic interview which, if taken out of context, could

have created a false impression by hearing only a part of the conversation. Id. Unlike Credille, in

Sauceda, there was little danger of misleading the jury by the introduction of a specific subject

that was never raised during the interview. Id. The procedural scenario in this case, however, aligns

with that of Credille because the jury could have received a false impression after hearing only

part of the recorded conversation between A.A. and Del Campo.

Appellant also complains the State improperly argued Rule 107 applies when a defendant

pursues a subject “outside the realm of proper comment by the prosecutor” and misstated the

record when it asserted defense counsel attempted to introduce the “specifics of what A.A. [had]

said.” Our analysis has encompassed these matters, and we need not reassess them. However, had

the trial court improperly admitted A.A.’s recorded forensic interview under Article 38.071 or

38.072, that evidence was properly admitted under Rule 107. Moreover, if the trial court

improperly admitted the recorded forensic interview, and if it was admissible under another

exception to the hearsay rule, the record shows the same evidence, or substantially similar

evidence, was admitted without objection when A.A. herself testified. To the extent any disparities

exist between A.A.’s recorded statements in her interview and trial testimony, we defer to the role

of the fact finder to resolve conflicting evidence. See Whatley v. State, 445 S.W.3d 159, 166

(Tex.Crim.App. 2014)(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979). Issue Three is

overruled.

Issues Five and Six: Sergeant Gonzalez’s Testimony

31
 In his fifth issue, Appellant identifies twenty-three instances in which he claims the State

adduced harmful hearsay statements from Sergeant Gonzalez that were designed and calculated to

demonstrate A.A. was a truthful and credible witness, and Appellant was guilty of sexually

assaulting her. Appellant asserts these statements exceeded a law enforcement officer’s permitted

generalized description of possible criminality or explanation of how Appellant became a suspect.

The State is permitted to offer out-of-court statements in evidence to explain why a

defendant became the subject of an investigation without violating the rule against hearsay.

Dinkins v. State, 894 S.W.2d 330, 347 (Tex.Crim.App. 1995). To run afoul of the hearsay rule, an

out-of-court “statement” need not be directly quoted. Head v. State, 4 S.W.3d 258, 261

(Tex.Crim.App. 1999)(citing Schaffer v. State, 777 S.W.2d 111, 114 (Tex.Crim.App. 1989)).

When an inescapable conclusion that a piece of evidence is being offered to prove statements made

outside the courtroom, a party may not circumvent the hearsay prohibition through artful

questioning designed to elicit hearsay indirectly. Id. at 261. Whether the disputed testimony is

hearsay depends on how strongly the content of the statement can be inferred from the context. Id.

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. Id. at 262. However,

as a threshold inquiry, we must consider whether Appellant preserved error by a proper trial level

objection and ruling. TEX.R.APP.P. 33.1; Geuder v. State, 115 S.W.3d 11, 13-14 (Tex.Crim.App.

2003).

Appellant complains of Sergeant Gonzalez’s answers to twenty-three questions posed by

the State. The record shows Appellant failed to object in twenty-one of those instances, which

Appellant concedes. Appellant has failed to preserve error for twenty-one of the specified portions

of the record; therefore, we are bound to restrict our analysis to the two instances Appellant did

32
object on hearsay grounds. TEX.R.APP.P. 33.1(a)(1)(A); TEX.R.EVID. 103; Lopez v. State, 253

S.W.3d 680, 684 (Tex.Crim.App. 2008).

In the first instance, the State asked, “did [A.M.] inform you basically what the accusation

is and who it is against?” and Appellant objected to hearsay after Sergeant Gonzalez answered in

the affirmative. The trial court sustained the objection and instructed the State to rephrase the

question. The State then asked, “[w]ithout asking you what she told you, did she inform you of the

accusation that had been made and who it was against?” Sergeant Gonzalez responded, “[A.M.]

did.” Appellant did not object to either the rephrased question or to Sergeant Gonzalez’s answer.

Because Appellant did not object to the rephrased question, he failed to preserve error.

TEX.R.APP.P. 33.1(a)(1)(A); TEX.R.EVID. 103; Moreover, any error in the admission of the

objected-to evidence was cured because the same evidence came in elsewhere without objection.

Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991).

Later, without objection, the State asked Sergeant Gonzalez whether he questioned A.A.

“anything about the truth or that it was not the truth concerning what she had told her mom,” to

which Sergeant Gonzalez replied, “[y]es. Sir.” Next the State asked, “[a]nd what did she tell you?”

Sergeant Gonzalez responded, “[s]he just nodded her head and stating it was the truth.” 4 Appellant

objected based on hearsay. The State responded, “[e]xception to hearsay, Your Honor. It dictates

the action that this witness would take and it also sets up a foundation for a further statement that

I’m about to present.” The trial court sustained the untimely hearsay objection. See Dinkins, 894

S.W.2d at 355 (“If he 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

error is waived.”); Mack v. State, 872 S.W.2d 36, 38 (Tex.App.—Fort Worth 1994, no

4
This language also encompasses part of Appellant’s sixth issue.

33
pet.)(recognizing if it does not become apparent the evidence is objectionable until after it is

admitted, then the defense must object as soon as it does become apparent and move to strike the

evidence from the record).

The Court of Criminal Appeals has found, “[o]rdinarily, a prompt instruction to disregard

will cure error associated with an improper question and answer[.]” Ovalle v. State, 13 S.W.3d

774, 783 (Tex.Crim.App. 2000). Appellant failed to ask the trial court to strike the testimony,

failed to seek a curative instruction to disregard Detective Gonzalez’s answer, and consequently,

the trial court did not instruct the jury to disregard the objected-to testimony. Without an instruction

to disregard, the complained-of testimony remained before the jury, which it was free to consider.

See Estrada v. State, 313 S.W.3d 274, 302, 313 (Tex.Crim.App. 2010)(holding the trial court

correctly sustained the State’s objections to hearsay, but because an objection is not a curative

measure meant to remove the objectionable statements from the jury’s consideration, the jury

could consider the evidence because the State failed to request an instruction to disregard). Now

on appeal, Appellant fails to explain why an instruction to disregard, had it been timely requested,

would not have cured error, if any, during the State’s examination of Detective Gonzalez. Further,

A.A. previously testified about the sexual abuse she suffered and identified Appellant as her

abuser. At the outset of her testimony, A.A. stated she understood the difference between the truth

and a lie and agreed to testify truthfully. At the conclusion of her testimony, A.A. affirmed her

testimony was truthful. Appellant did not object to this testimony. As the role of fact finder, “[t]he

jury are the exclusive judges of the credibility of the witnesses and the weight to be given to their

testimony.” Lopez v. State, 172 Tex.Crim. 317, 356 S.W.2d 674, 676 (1962). We conclude

evidentiary error, if any, did not have a substantial and injurious effect or influence on the jury’s

verdict and was harmless. Issue Five is overruled.

34
 In his sixth issue, Appellant asserts the trial court erred when it admitted A.A.’s written

statement—State’s Exhibit 2. We have previously concluded above that any error in the admission

of A.A.’s written statement was harmless because the same, or substantially the same evidence,

was presented without objection during A.A.’s testimony. According to Appellant, the trial court

improperly allowed Sergeant Gonzalez to read A.A.’s written statement “as if [its] acquisition . . .

was part of his official investigation,” thereby effectively signaling the truth of the statement to

the jury, and improperly permitted the State to adduce testimony showing A.A.’s statement was

consistent with her other statements, which thereby placed Sergeant Gonzalez “in a position to

vouch for A.A.’s credibility and truthfulness.” The State argues this issue is multifarious and

unclear. Moreover, because Appellant did not object when the State asked Detective Gonzalez to

read the statement to the jury, the State also asserts Appellant has not preserved this issue for

appeal. We agree.

Although no “magic words” are required, an objection must be clear enough to provide the

judge and the opposing party an opportunity to address and, if necessary, correct the purported

error, and we will consider the objection in the context in which the complaint was made and the

parties’ shared understanding of the complaint at that time. Pena v. State, 353 S.W.3d 797, 807

(Tex.Crim.App. 2011). After careful consideration, we find it is clear Appellant’s complaint on

appeal is based on the reading of A.A.’s statement into the record, rather than its actual admission.

The record clearly reflects A.A.’s written statement was not made as part of Sergeant Gonzalez’s

investigation, but rather, was prepared at her mother’s request.

At trial, Appellant failed to object to Sergeant Gonzalez’s testimony regarding how he

learned of A.A.’s outcry or any “initial reports.” Appellant failed to object before, during, or after

Sergeant Gonzalez read A.A.’s written statement to the jury and did not request or obtain a running

35
objection on any basis. To preserve error in admitting evidence, a party must object and obtain a

ruling, and object each time the inadmissible evidence is offered, or obtain a running objection.

Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App. 2003). We conclude Appellant has not

preserved this complaint for our review. TEX. R. APP. P. 33.1(a)(1)(A). Issue Six is overruled.

Issue Eight: Del Campo Testimony

In his eighth issue, Appellant maintains the trial court erred when it overruled his hearsay

objection and allowed the State to elicit Del Campo’s testimony that A.A.’s “inadmissible”

allegations of sexual assault during the forensic interview were consistent with information Del

Campo received from “inadmissible hearsay sources.”

After A.A. testified to the sexual abuse without objection, the State asked Del Campo

whether A.A. told her “anything different that would conflict with the allegations that [Del Campo]

had received.” Del Campo answered, “No[,]” Appellant objected based on hearsay. The trial court

overruled Appellant’s objection after the State explained, “Your Honor, I’m not asking her to

say—in fact, I’ve been very careful to not ask what [was] said or [what] any recording

demonstrated, just was it consistent with the accusations that [Del Campo] was talking to [A.A.]

about.” 5

Analysis

Relying on a footnote in Sandoval v. State, Appellant argues the trial court abused its

discretion when it allowed the State’s “consistency” question about A.A.’s statements. 409 S.W.3d

259, 281-84 (Tex.App.—Austin 2013, no pet.).

The relevant footnote from Sandoval states:

5
When A.M. testified as a defense witness, the State asked whether A.A.’s description of sexual abuse had remained
consistent. A.M. confirmed A.A.’s statement to her was basically the same, except for some information she had
learned from the SANE nurse and CPS, including information A.A. provided during the recorded forensic interview.
Appellant did not object to this question or A.M.’s answer.

36
 Questions about consistency among statements are not necessarily improper, as
they may or may not convey the contents of the out-of-court statement in violation
of the hearsay rule. See Head v. State, 4 S.W.3d 258, 264 (Tex. Crim. App. 1999)
(Womack, J., concurring) (in context of case, ‘the evidence was offered to prove
that there were no inconsistencies at that time in the investigation which would have
called for [the investigator] to take other investigatory steps. The evidence was that
the three persons had given consistent statements, but there was no evidence of the
contents of those statements.’). Here, however, the statements themselves were
admitted into evidence. Thus, the questions about consistency improperly conveyed
the content of the statements.

Sandoval, 409 S.W.3d at 288 n.16.

In Head v. State, the case cited within the Sandoval footnote, the court found when

determining whether questions regarding the consistency of statements are improper, it is

important to consider whether the question improperly conveys the content of the statement. 4

S.W.3d at 264; Sandoval, 409 S.W.3d at 288 n.16. Here, however, the record demonstrates neither

the State’s question, nor Del Campo’s answer, conveyed the content of A.A.’s statements

regarding the incidents of abuse that A.A. previously testified to absent objection. Compare

Sandoval, 409 S.W3d at 288 (explaining erroneously admitted hearsay was admitted over

objection before the child victim had testified). And, in this instance, the State sought to elicit

testimony regarding an absence of conflicting statements, not hearsay. See Riley v. State, 249 S.W.

1065, 1065 (Tex.Crim.App. 1923)(explaining it was proper to permit witness to testify she knew

her mother did not consent to the witness’s act of taking fowls as the testimony was “not

necessarily hearsay or the opinion of the witness[] but may have been based wholly and entirely

upon facts known to said witness”). Del Campo knew A.A.’s statements did not conflict and

provided a non-hearsay based answer—“No.” Although Del Campo’s answer did not satisfy the

present sense impression exception, we conclude Del Campo’s response did not include the

contents of A.A.’s statements to render it hearsay. TEX.R.EVID. 803(1)(defining a present sense

impression as statement describing or explaining an event or condition, made while or immediately

37
after the declarant perceived it, and declaring a present sense impression is not excluded by the

rule against hearsay, regardless of whether the declarant is available as a witness). Issue Eight is

overruled.

Issue Nine: Jansky’s Expert Qualifications

In his ninth issue, Appellant argues the trial court abused its discretion when it overruled

Appellant’s Daubert objections to Jansky’s qualification as an expert, and his objection her

testimony would not assist the jury in deciding the case, but rather, would supplant the jury’s

verdict.

Applicable Law

We review a trial court’s ruling on the qualification of an expert and the admissibility of

expert testimony for an abuse of discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex.Crim.App.

2019); Coble v. State, 330 S.W.3d 253, 272 (Tex.Crim.App. 2010). Texas Rule of Evidence 702

provides, “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or

education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or

other specialized knowledge will help the trier of fact to understand the evidence or to determine

a fact in issue.” TEX.R.EVID. 702. To be admissible, the proponent of the expert scientific evidence

must demonstrate, by clear and convincing evidence, that the testimony is “sufficiently reliable

and relevant to help the jury in reaching accurate results.” Wolfe v. State, 509 S.W.3d 325, 335-36

(Tex.Crim.App. 2017), quoting Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App. 1992). The

proponent of the expert and her testimony must prove: (1) the expert is qualified; (2) the testimony

is based on a reliable scientific foundation; and (3) the testimony is relevant to the issues in the

case. Wolfe, 509 S.W.3d at 336. “These conditions are commonly referred to as (1) qualification,

(2) reliability, and (3) relevance.” Vela, 209 S.W.3d at 131.

38
 Relevant Portion of the Record

During the “gatekeeper” hearing regarding Jansky’s qualifications, Appellant challenged

Jansky’s testimony. See E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549, 558

(Tex. 1995). At the outset of Jansky’s testimony, the State requested the trial court take judicial

notice of the “general field” of psychology and social work, including the validity of techniques

applying theories in those fields, such as therapeutic counseling. Appellant acknowledged, “while

I don’t necessarily disagree on its face, I’ve seen no evidence to support the proffer of judicial

notice[.]” Jansky, a licensed clinical social worker with a master’s degree in social work, served

as the director of trauma services at the Center for Child Protection in Austin for more than twenty

years, and was trained to treat trauma and child sexual abuse, physical abuse, and emotional abuse.

Jansky agreed certain behavioral characteristics and indicators, including acts that may be

consistent with sexual abuse, are part of an accepted theory that could be applied in her field of

expertise. Jansky was also certified by the Child Trauma Academy of Houston as a

Neurosequential Model of Therapeutics clinician, counseled and treated hundreds of children for

sexual abuse, and presented at local and national conferences on these topics. She observed,

supervised, and provided therapeutic counseling and treatment to A.A. since early 2016.

When the State proffered Jansky as an expert witness, Appellant objected Jansky’s

testimony would supplant, rather than aid, the jury’s fact-finding determination. The trial court

requested to hear more specific information from Jansky to establish her expertise. Jansky testified

the field of child abuse relies upon accepted principles and explained her training and education

included an understanding and knowledge of the science and symptoms of child abuse, particularly

sexual abuse, physical abuse, and issues related to trauma. She explained victims are assessed for

symptoms, then proceed through treatment. Diagnosis involves conversations with the patient to

39
assess the severity of the “wound” and an appropriate treatment is then determined. Jansky testified

her field of expertise in child abuse and trauma has been acknowledged as legitimate and is

recognized by national accreditation.

When the State asked Jansky to explain how her testimony would relate to her field of

expertise, she answered, “I believe that I can speak to the dynamics and symptoms and signs of

child sexual abuse. And then specifically how that relates to this child victim.” She then explained

there are “very clear[ly] identified signs and symptoms of abuse that—and trauma—that we look

for, and so one of the things that’s very important is that you look at those symptoms objectively

and not in the frame of, ‘Well, it’s because of this or it’s because of that.’” Jansky stated that

clearly identified principles guide her assessments which she relies on to form her opinion. Jansky

reviewed A.A.’s medical records—which were prepared by qualified persons under Jansky’s

supervision—and based on her own treatment of A.A., Jansky found A.A. exhibited sexual abuse

indicators, including guilt, concern and fear for her siblings, reoccurring nightmares, difficulty

sleeping, difficulty in relationships and the ability to trust others, acting out, low self-esteem, and

disassociation. Jansky confirmed she could assist the jury in understanding the distinctions

between behaviors a child might exhibit and how they may differ from those of an adult. This

includes recantations that may occur but are uncommon, as well as a child’s changes in

descriptions of time and location of events. When Jansky testified she believed her expertise and

testimony would not supplant the jury’s fact-finding role and would assist the jury in understanding

A.A.’s circumstances, the trial court sustained Appellant’s speculation objection. During cross-

examination, Jansky agreed while child trauma and therapeutic counseling are not different, they

are also not the same, and she stated A.A.’s removal from her home and separation from her

mother, friends, and animals also may have contributed to her traumatic experience. At the

40
conclusion of the hearing, Appellant renewed his objection Jansky’s testimony would merely

supplant, rather than aid, the jury’s fact-finding determinations. The trial court overruled his

objection and permitted Jansky to testify.

Analysis

The State argues Appellant has failed to preserve this issue for our review. The State

correctly posits Appellant did not object to Jansky’s qualifications or to the reliability of the

underlying theories she addressed, and instead objected on the very limited basis Jansky’s

testimony did not “add[] anything to the jury’s determination” and “would supplant it.”

When evidence is conditionally relevant under Rule 104 but is not “connected up” before

the end of the trial, “the objecting party must reurge his relevancy complaint after all the proof is

in, ask that the offending evidence be stricken, and request that the jury be instructed to disregard

it [or] his objection will be deemed forfeited on appeal.” Fish v. State, 609 S.W.3d 170, 182

(Tex.App.—Houston [14th Dist.] 2020, pet. ref’d)(quoting Fuller v. State, 829 S.W.2d 191, 197–

99 (Tex.Crim.App. 1992), overruled on other grounds by, Riley v. State, 889 S.W.2d 290, 301

(Tex.Crim.App. 1993)). The State asserts Appellant failed to reurge his complaint Jansky’s

testimony would supplant rather than aid the jury’s fact-finding role. Further, he failed to request

the evidence be stricken or the jury instructed to disregard the evidence, therefore he has forfeited

this complaint. However, the testimony Appellant complains of was not adduced at trial but was

presented to the trial court as gatekeeper and arguably is encompassed by Appellant’s jury-

supplantation complaint. See Bekendam v. State, 441 S.W.3d 295, 300–01 (Tex.Crim.App. 2014)

(recognizing that although the point of error on appeal must comport with the objection made at

trial, reviewing courts are not hyper-technical in their examination of whether error was

preserved).

41
 In its role as a gatekeeper, the trial court must decide any preliminary challenge to a

witness’s qualifications and evidence’s admissibility. TEX.R.EVID. 104(a); Vela, 209 S.W.3d at

131. In discharging this gatekeeper role, the trial court has the difficult task of determining what

is irrelevant or likely to confuse the jury in its decision-making process. See Coble v. State, 330

S.W.3d 253, 272 (Tex.Crim.App. 2010). The trial court’s gatekeeping role, however, does not take

the place of the traditional and appropriate means of attacking shaky but admissible evidence

through cross-examination. Wolfe, 509 S.W.3d at 336.

We recognize, during the hearing—unlike Appellant’s complaint on appeal regarding

Jansky’s gatekeeper-hearing testimony, specifically Jansky’s declaration her testimony would

relate to the field of child sexual abuse because she is able to “speak to the dynamics and symptoms

and signs of child sexual abuse[,] [a]nd then specifically how that relates to this child victim[,]”—

Appellant did not object to this exact testimony, which the State elicited in an attempt to address

the trial court’s gatekeeping concerns regarding “what exactly the expert’s expertise is going to

bring in this case to assist the tier of fact . . . .” The trial judge advised the State it “would like to

hear something more about how therapeutic counseling relates specifically to the issues that are

before this court in this case, which go to assisting the jury, the trier of fact, in determining some

facts[.]” The complained-of answer—Jansky’s response to how the dynamics, symptoms, and

signs of child sexual abuse relate specifically to A.A.—directly addressed the trial court’s request

for additional information about how Jansky’s testimony could aid the jury in its role as fact finder.

We recognize Jansky’s specific answer regarding “this child victim” would be inappropriate and

would supplant the jury’s fact-finding role if the testimony had been made in the presence of the

jury, but it was not. Moreover, the trial court’s role during the gatekeeper hearing was not as a fact

finder. Rather, the trial court acted as a gatekeeper in assessing whether Jansky was an expert

42
whose testimony would aid the fact finder at trial, the jury. Even if defense counsel had objected

to this specific testimony, defense counsel’s jury supplantation objection embodies the

complained-of testimony and was reurged at the conclusion of the gatekeeper hearing.

Nevertheless, it is clear from our review of the record that the trial court considered,

discussed, and ruled on Jansky’s qualifications, as well as the reliability and relevance of her

testimony, including whether her background was sufficiently tailored to the specific area of child

sexual abuse her testimony offered. See Vela, 209 S.W.3d at 131, 133. The depth of Jansky’s

professional career included her experience as the Director of Trauma Services at the Children’s

Advocacy Center—where she provided services for more than twenty years in cases involving

sexual abuse of children—as well as her professional training and presentations, and personal

experience in conducting and supervising investigations of sexually abused children. This was

sufficient to qualify her to explain the dynamics and common characteristics of a sexually abused

child, including the dynamics and characteristics exhibited by A.A. We conclude the specific

testimony about which Appellant complains on appeal did not render the trial court’s qualification

of Jansky an abuse of discretion.

The trial court’s ruling Jansky was qualified as an expert in the field of child abuse and

child sexual abuse and her testimony was reliable and relevant was within the zone of reasonable

disagreement. See, e.g., Duckett v. State, 797 S.W.2d 906, 920 (Tex.Crim.App. 1990)(en banc)

(concluding that social worker with experience in many cases of child sexual abuse was qualified

as an expert in the field and that the expert’s testimony could aid the jury in understanding why

the victim changed her testimony and appeared confused), disapproved on other grounds by, Cohn

v. State, 849 S.W.2d 817, 819 (Tex.Crim.App. 1993)(en banc). Because the trial court’s ruling lies

within the zone of reasonable disagreement, we will not disturb it. Russeau v. State, 291 S.W.3d

43
426, 438 (Tex.Crim.App. 2009).

Even if we were to assume error occurred, we conclude any such error did not affect

Appellant’s substantial rights. Jansky did not opine about A.A.’s truthfulness and her testimony

did not determine a fact in issue for the jury. See Yount v. State, 872 S.W.2d 706, 712

(Tex.Crim.App. 1993)(holding that Rule 702 does not permit an expert to opine that a complainant

or class of persons to which the complainant belongs is truthful). Issue Nine is overruled.

Issue Ten: Jansky’s Medical Diagnosis Testimony

In his tenth issue, Appellant contends the trial court erred when it permitted Jansky to

testify before the jury A.A. had disclosed Appellant had sexually abused her. Appellant complains

Jansky’s hearsay testimony regarding A.A.’s proclamation of sexual abuse was improper because

the statement was not made for purposes of medical diagnosis or treatment. Appellant further

argues the statement does not satisfy Article 38.072 hearsay exception to outcry evidence, and

Jansky improperly supplanted the jury’s function by stating Appellant had sexually assaulted A.A.

Appellant did not object to this specific statement or request a running objection, and the State

urges this issue has not been preserved. TEX.R.APP.P. 33.1(a)(1)(A). We agree.

At trial, Jansky testified she provided therapeutic services to A.A. for approximately one

hundred sessions over the course of two years. The State asked Jansky, “[w]hat have you been told

by [A.A.]” and defense counsel objected on grounds of hearsay. During a bench conference, the

State argued the hearsay statement was admissible under the medical diagnosis or treatment

exception set forth in Rule 803(4). The State claimed the foundation was laid for this testimony

under Rule 803(4) by asking what information Jansky had received which allowed her to properly

evaluate A.A. and provide appropriate services. See TEX.R.EVID. 803(4)(declaring a statement

made for medical diagnosis or treatment is not excluded by the rule against hearsay, regardless of

44
whether the declarant is available as a witness).

The trial court overruled Appellant’s objection noting “[t]he Court’s ruling is that it does

fall within [the Rule 803(4)] exception.” After Jansky testified regarding standard practices, the

State’s prosecutor asked Jansky what she had learned from A.A. Jansky testified “[A.A.] [had]

said that she was sexually abused by the Defendant.” Appellant failed to object to this response,

which he now complains of on appeal. Appellant has failed to preserve this issue for review.

Moreover, Jansky did not directly testify Appellant had abused A.A., and the trial court ruled this

evidence was admissible under Rule 803(4). Jansky’s testimony did not suggest or confirm A.A.

was truthful or credible as Appellant urges in his reply brief. See TEX.R.APP.P. 38.1(a)(1)(A);

Yount, 872 S.W.2d at 712. Issue Ten is overruled.

Issues Seven and Eleven: Jansky’s Other Testimony

We next consider in tandem Appellant’s seventh and eleventh issues in which he asserts

the trial court egregiously erred by permitting Jansky’s testimony on additional matters. Appellant

does not set forth any standard of review, authority, or analysis supporting alleged error, if any,

was egregious.

In his seventh issue, Appellant claims he suffered egregious error arising from Jansky’s

testimony on matters unrelated to the dynamics and common characteristics of a sexually abused

child. Appellant asserts he was not required to preserve error because Jansky’s testimony was

speculative or conclusory. He acknowledges Texas courts have recognized a licensed clinical

social worker who is qualified by education and experience may testify regarding the usual

behavior of sexually abused children to explain the dynamics and common characteristics of a

sexually abused child but may not opine as to whether a defendant has committed the offense or

whether the child complainant has testified truthfully or is credible. See Cohn v. State, 849 S.W.2d

45
817, 818–19 (Tex.Crim.App. 1993); Chavarria v. State, 307 S.W.3d 386 (Tex.App.—San Antonio

2009, no pet.).

In part, Jansky testified A.A. suffers from disassociation, guilt, shame, loss, sadness,

insomnia, and nightmares. A.A. developed a maladaptive coping mechanism in which she wears

tight clothing to bed and explained to Jansky she does this to keep Appellant away. This trauma-

related behavior continued despite A.A. moving to another city. Jansky testified A.A. lost her

family, mother, animals, school, friends, and “just about everything[,]” but had not recanted the

sexual abuse. Appellant asserts Jansky’s testimony was outside the scope of her expertise and was

calculated to demonstrate A.A. was truthful, credible, and had no bearing or relevance on whether

A.A. displayed behavioral characteristics of sexual abuse.

The record demonstrates Appellant failed to object to the questions posed by the State or

the testimony on these matters. The State asserts Appellant has forfeited these complaints for our

review. We agree. TEX.R.APP.P. 33.1(a)(1)(A). Moreover, the Texas Court of Criminal Appeals

has recognized a child-declarant’s statement made for the purpose of facilitating the child’s own

mental health “may carry the same self-interested motive as a statement made to facilitate the

declarant’s physical well-being. If so, there is no reason to exclude it from Rule 803(4)’s ambit,

regardless of whether the care-giver is . . . some other trained mental-health professional.” Taylor

v. State, 268 S.W.3d 571, 587–88 (Tex.Crim.App. 2008). Moreover, had Appellant preserved

error—and assuming without deciding the trial court abused its discretion—A.A. testified prior to

Jansky’s testimony, describing how and when Appellant sexually abused her, and its effect upon

her. Therefore, had error been preserved, it would have been harmless. Issue Seven is overruled.

In his eleventh issue, Appellant complains the State improperly adduced testimony from

Jansky that purportedly “vouched for [A.A.’s] truthfulness and credibility . . . as a witness and as

46
an alleged crime victim[,]” and argues this error was egregious. The State again asserts Appellant

failed to object to the colloquy occurring before or after either the question to Jansky, or her answer

about which Appellant now complains, and therefore concludes Appellant has failed to preserve

error. We agree.

We observe that generally an expert’s testimony on whether a particular witness is truthful

is inadmissible under Rule 702. TEX.R.EVID. 702. However, expert testimony a child exhibits

behavioral characteristics that have empirically shown to be common among sexually abused

children is relevant and admissible under Rule 702. Yount, 872 S.W.2d at 708–09; Cohn, 849

S.W.2d at 819. Moreover, such testimony is not objectionable that it bolsters the credibility of the

child complainant. Cohn, 849 S.W.2d at 820–21.

Jansky did not offer a direct opinion A.A. was truthful regarding her sexual abuse claims

or A.A. belonged to a class of persons that was truthful or worthy of belief, nor did she offer a

direct opinion A.A. was credible. Rather, Jansky testified to the behavioral characteristics of

children who have suffered sexual abuse. Her testimony was admissible to assist the jury in

assessing A.A.’s testimony. Issue Eleven is overruled.

Issues Twelve through Fifteen: The SANE’s Testimony and SAFE Report

In Issues Twelve through Fifteen, Appellant asserts the trial court abused its discretion

when it admitted State’s Exhibit 6 and improperly allowed Armstead, the SANE nurse, to testify,

which he claims is egregious error.

Applicable Law

Under Rule 803(4), a statement made for medical diagnosis or treatment is not excluded

by the rule against hearsay, regardless of whether the declarant is available to testify. TEX.R.EVID.

803(4). A statement made for medical diagnosis or treatment is one made for—and is reasonably

47
pertinent to—medical diagnosis or treatment and describes medical history, past or present

symptoms or sensations, their inception, or their general cause. TEX.R.EVID. 803(4)(A), (B). To

be admissible under Rule 803(4), a hearsay statement must be pertinent to diagnosis or treatment.

Taylor v. State, 268 S.W.3d 571, 591 (Tex.Crim.App. 2008). The proponent of the evidence must

show the out-of-court declarant possessed an awareness the statements were made for purposes of

medical diagnosis or treatment and proper diagnosis or treatment depends upon the veracity of the

declarant’s statements. Id.

Relevant Portion of the Record

Armstead, the sexual assault nurse examiner (“SANE”) who examined A.A., testified

SANEs attain certification through state or national organizations for the purposes of collecting

forensic evidence, completing physical examinations, providing a diagnosis and impressions from

the exam, and the evidence that is collected. Appellant affirmatively stated he had no objection to

Armstead testifying as an expert witness.

At trial, Armstead explained the Sexual Assault Forensic Exam (“SAFE”) begins with a

patient history for the purpose of providing a medical diagnosis and treatment. The SANE collects

history information for both acute exams, which include the collection of forensic evidence when

the alleged sexual assault has occurred within 96 hours of the examination, and a chronic exam,

which is typically performed without the collection of forensic evidence on children who have

made an outcry of sexual assault after a period greater than 96 hours. After the history portion of

the exam, the SANE examines the patient’s body, including the genitalia and rectum, for injuries,

scars, and healing patterns. The SANE then prepares findings from the assessment. The SANE

documents the patient’s statements verbatim in the medical record, but no recording of the SAFE

is made. Photographs are taken of findings made during the physical examination of the patient.

48
 Armstead performed a chronic SAFE examination of A.A. When the State introduced

State’s Exhibit 6, the Forensic Examination Report accompanied by a business record affidavit,

Appellant objected, “I don’t think that hearsay within hearsay is subject to [the] business record

exception. So[,] I would object to the hearsay within the business record.” The State responded,

“what else is in a business record but hearsay, what someone is describing[?]” The State also

argued the record of A.A.’s exam “was part of the diagnosis of the injury and is permitted because

to treat a person, [the SANE asks] then what happened and [obtains] a description of what

happened to afford [the SANE] the opportunity to give [the patient] the treatment that is warranted

in the situation.”

The trial court admitted State’s Exhibit 6 after declaring:

The Court, in reviewing the objections, notes that a business record can contain
hearsay by a party owner, the person who created the business record, but as stated
by the State, there is an exception to hearsay in Rule 803 for medical records for
treatment or diagnosis. Accordingly, the defendant’s objection is overruled[.]

Armstead confirmed State’s Exhibit 6 was a business record she was familiar with and was

relevant to A.A.’s SAFE examination. Armstead began the SAFE examination with A.A.’s history

and took notes on A.A.’s physical appearance as well as patterns of injury and healing. The non-

hearsay information contained in the report includes notations regarding A.A.’s demeanor and

physical appearance, which is described as “[s]hy, does not make eye contact. Eyes red, with tears

streaming down the face. States she is scared and appears timid with shoulders lowered, head

bowed down.” Armstead then began the physical examination. Armstead explained when she is

diagnosing, treating, and making findings, the description of the events, as well as the patient’s

age, are important factors, especially the latter because differences in anatomy and estrogen levels

are age-related. A.A.’s physical positions during the examination are noted in the report and the

areas where trauma was not observed also are noted. The report describes that A.A.’s hymen was

49
examined and includes a note indicating the finding of “healed transections.” Armstead testified a

healed transection is a hymenal tear that extends to the vaginal wall. A.A. had two healed

transections and thinning of the hymen, the latter of which is typically present in repeated

penetration. Armstead’s impressions on the SAFE report include a comment that A.A. had reported

sexual assault in her history as well as “[p]ositive findings on genital exam.” Armstead

acknowledged she had taken photographs of A.A. for treatment purposes and stated the

photographs were relevant to A.A.’s examination. Armstead further opined that A.A.’s injuries

were consistent with A.A.’s description the abuse and stated her impression of repeated sexual

assault was in accordance with A.A.’s patient history.

Analysis

The State argues Appellant has not preserved Issues Twelve through Fourteen because he

presented a general hearsay objection and failed to specify the particular statements he was

objecting to when he stated, “I don’t think that hearsay within hearsay is subject to that business

record exception[,] [s]o I would object to the hearsay within the business record.” The State

maintains Appellant has failed to sufficiently inform the trial court of the basis of the complaint

he now raises on appeal. Due to the brevity of State’s Exhibit 6 and the hearsay statements

contained within the history portion, we conclude the trial court was sufficiently informed of the

basis of Appellant’s trial complaint relating to the hearsay nature of A.A.’s statements to Armstead.

In his twelfth issue, Appellant asserts the trial court abused its discretion by admitting

State’s Exhibit 6 and permitting Armstead to testify to its contents. According to Appellant, the

State failed to establish an applicable hearsay exception to render the exhibit admissible. However,

at trial, the State argued the complained-of hearsay was admissible under Rule 803(4), and the trial

court agreed. On appeal, Appellant specifically complains the record does not show A.A. knew

50
the importance of telling Armstead the truth for the purpose of medical diagnosis or treatment.

TEX.R.EVID. 803(4); Taylor, 268 S.W.3d at 588–89. Appellant did not make this argument at trial.

However, “courts can infer from the record that the victim knew it was important to tell a SANE

the truth in order to obtain medical treatment or diagnosis.” Franklin v. State, 459 S.W.3d 670,

677 (Tex.App.—Texarkana 2015, pet. ref’d). Appellant argues the trial court was not able to infer

from the record A.A. knew the importance of telling the truth to Armstead because there is no

evidence the examination was conducted for purposes of diagnosing or treating a medical

condition. We disagree.

Although State’s Exhibit 6 does not reflect a course of treatment, it does include a

diagnosis, specifically A.A.’s hymen had two areas of healed transections as well as a positive

impression after the genital exam A.A. endured repeated sexual assault corresponding to A.A.’s

history. Armstead testified the transections or tears of A.A.’s hymen extended to the vaginal wall,

and the wall of the hymen had been thinned, which is indicative of repeated penetration. It is

possible treatment was not required for A.A.’s healed physical injuries, but, arguably, whether an

injury existed and whether treatment was necessary would have remained unknown in the absence

of a medical examination. Nonetheless, this evidence establishes the examination was conducted

for purposes of diagnosing a medical condition and as a result of the medical examination,

Armstead diagnosed the medical condition of A.A.’s hymen. Appellant also argues the State failed

to satisfy its burden of establishing an applicable exception to permit the admission of A.A.’s

hearsay statements. See Taylor, 268 S.W.3d at 578–79. Issue Twelve is overruled.

In his thirteenth issue, Appellant complains the trial court abused its discretion when it

overruled his “hearsay” objection, admitted State’s Exhibit 6, and permitted Armstead to testify

about the statements A.A. made to her. Appellant’s underlying basis for this complaint is that

51
“many of A.A.’s statements were not shown to be pertinent to medical diagnosis or treatment.”

We recognize Appellant did not make this specific argument at trial and only complained the

“hearsay within hearsay” statements did not satisfy the business record exception. The State then

countered State’s Exhibit 6 was admissible under Rule 803(4) exception, and Appellant failed to

seek to exclude specific portions of the exhibit withheld from the jury’s consideration.

Initially, Appellant repeats his Issue Twelve argument here, asserting “A.A. would not

have known that her statements were made for purposes of medical diagnosis or treatment.” We

have overruled this complaint. Appellant also argues “virtually every oral statement [that] A.A.

related to Armstead” had no relevance to A.A.’s SANE examination. We disagree.

As the Fort Worth Court has observed, “[t]he object of a sexual assault exam is to ascertain

whether the child has been sexually abused and to determine whether further medical attention is

needed. Thus, statements describing acts of sexual abuse are pertinent to the [child’s] medical

diagnosis and treatment.” Beheler v. State, 3 S.W.3d 182, 188 (Tex.App.—Fort Worth 1999, pet.

ref’d). Moreover, the identity of an offender falls within the ambit of this hearsay exception

because it is relevant to treatment, particularly in family violence cases, insofar as it presents an

environmental and safety issue that could frustrate diagnosis and treatment. See, e.g., Bargas v.

State, 252 S.W.3d 876, 896 (Tex.App.—Houston [14th Dist.] 2008, pet. ref’d)(explaining the

identity of a child abuser is medically relevant because treatment could include removal of the

child from an abusive environment). In this instance, A.A. lived with Appellant at the time of the

alleged sexual abuse, and A.A. told Armstead during the examination Appellant had sexually

abused her “in the house” and “in my room” as described in State’s Exhibit 6.

Appellant did not complain to the trial court regarding any specific hearsay statements as

he now complains on appeal. However, the record shows Armstead obtained A.A.’s statements

52
during the history portion of the exam, as Armstead is required to do during SAFE exams, and the

purpose of obtaining A.A.’s history was to guide Armstead through her assessment of A.A. and to

aid in identifying areas where injury or healing may have occurred. A.A. informed Armstead

Appellant had touched her “on [her] private parts,” pointed to her breasts, buttocks, and female

sexual organ, made A.A. touch “his thing” and had put his “thing” in her bottom. A.A. advised

Armstead Appellant directed her to open her legs and had stuck his finger “up inside my front.”

A.A. also stated Appellant had placed his “private” in A.A.’s “private” and it hurt. A.A.’s

statements to Armstead described the areas of her body where a medical diagnosis could be made

and for which treatment may have been necessary, and therefore, those hearsay statements to

Armstead and recited within State’s Exhibit 6 were pertinent to A.A.’s medical diagnosis or

treatment. TEX.R.EVID. 803(4).

We are unpersuaded by Appellant’s assertion that Armstead did not perform an acute exam

and collect forensic evidence from A.A. establishes her medical examination was only performed

for prosecution purposes rather than to provide a medical diagnosis or treatment. Although A.A.

testified Appellant had last placed his “thing” in her “[a] couple of months ago,” she also testified,

without reference to a timeframe, “[m]ost of the time he touches me when I’m asleep and tells me

to open my legs. . . . He sticks his finger up inside my front.” It was possible during the examination

Armstead may have diagnosed a more recent, and possibly unhealed, injury to A.A. which

occurred more than 96 hours from the time of the exam, even in the absence of forensic evidence.

The trial court’s ruling A.A.’s hearsay statements and Armstead’s testimony regarding

those hearsay statements were admissible under Rule 803(4) was within the zone of reasonable

disagreement. The trial court did not abuse its discretion by concluding the history that A.A.

provided to Armstead was made for and pertinent to her diagnosis or treatment. Issue Thirteen is

53
overruled.

In his fourteenth issue, Appellant asserts the trial court erred when it admitted State’s

Exhibit 6 and Armstead’s testimony regarding its contents because the State failed to prove any

diagnosis or treatment by Armstead was dependent on the veracity of A.A.’s statements regarding

Appellant’s sexual abuse of her. In support of this contention, Appellant emphasizes the areas on

A.A.’s body where no evidence of injury was found, asserting without citation to or any basis in

the record, “Appellant’s finger would not be larger than the opening of A.A.’s vagina[,]” and

would not result in A.A.’s hymenal injuries. For these reasons, he concludes the State did not prove

State’s Exhibit 6 was admissible under Rule 803(4). We are unpersuaded by this additional

argument. We rely on our analyses of Issues Twelve and Thirteen and conclude the trial court’s

ruling that State’s Exhibit 6 and Armstead’s testimony was admissible under Rule 803(4) is within

the zone of reasonable disagreement. Issue Fourteen is overruled.

In his fifteenth issue, Appellant argues the trial court egregiously erred when it permitted

Armstead to opine A.A.’s injuries were consistent with A.A.’s “description of what happened.”

Appellant argues Armstead’s expert opinion was conclusory and speculative as a result of her

failure to draw any causal connection between the healed hymenal transections and Appellant’s

alleged conduct. He contends Armstead’s testimony A.A.’s SAFE examination was consistent

with A.A.’s history recitation, her testimony A.A.’s injuries were consistent with A.A.’s

description of the abuse, and her explanation of why she reached her conclusion, were not relevant

to any issue in the case. Therefore, they were conclusory and speculative in the absence of an

evidentiary link between the injury and Appellant’s conduct. Appellant limits his complaints to

specific testimony on page 150 of the record. In his reply brief, Appellant additionally complains

54
of Armstead’s testimony on pages 153 and 154 of the record. 6

Appellant concedes his defense counsel failed to object to this testimony on these bases,

but argues we are bound by the Texas Supreme Court’s holding in a civil case holding defense

counsel is not required to object if an expert witness’s opinion is conclusory or speculative. Coastal

Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004). However,

the Court of Criminal Appeals has not applied the Coastal holding in any reported opinion. As

conceded, defense counsel did not object at trial on these bases. As to Armstead’s complained-of

testimony on page 150 of the relevant portion of the record, Appellant’s complaint on appeal does

not comport with the only objection defense counsel lodged during this portion of the complained-

of testimony—Armstead was volunteering information that had not been requested. Clark, 365

S.W.3d at 339. Appellant has failed to preserve this issue for our review. TEX.R.APP.P. 33.1.

At trial, Armstead explained after a female child reaches two years of age until puberty,

her estrogen levels drop, and the elasticity of the hymen is reduced. Armstead testified, “[a]nd

touching [the hymen]—there’s no elasticity—it would hurt[,] and it tears [like tissue paper].” She

explained “[i]f that skin is penetrated by an object larger than the vaginal opening, that skin will

tear.” Armstead also explained the female body is not prepared for nonconsensual penetration, and

the abrasion of dry skin can tear and thin the hymen. After puberty, the hymen thickens and

Armstead expected to find a thick and more elastic hymen, but instead, discovered A.A.’s hymen

to be significantly thinner, “like it’s been eroded or rubbed away[.]” Under cross-examination,

Armstead testified A.A.’s injuries could only be attributed to penetration but admitted it was

possible the injuries could have been caused by masturbation or sexual intercourse. As noted on

6
In his reply brief, Appellant refers to this issue as “point of review 16.” We note Rule 38.3 of the Texas Rules of
Appellate Procedure restricts a reply brief to addressing matters raised in the Appellee’s brief, and therefore, a reply
brief may not be utilized to present a new issue to the Court.

55
State’s Exhibit 6, Armstead testified her “impression” from the examination of A.A. was A.A.’s

injuries were consistent with A.A.’s reported history of repeated sexual assault. After this

testimony, the trial court overruled Appellant’s objection, even as a qualified expert, Armstead

could not offer her opinion as to an ultimate issue of fact. This evidence and testimony were

relevant to show A.A. suffered physical injuries consistent with penetration. Armstead did not

testify, or report Appellant was the cause of the penetration; she reported her impression the

injuries were consistent with the history reported by A.A.

Assuming Appellant preserved error, we examine the purported error to determine whether

the error was harmless. TEX.R.APP.P. 44.2(b). A.A. testified at trial, just as she disclosed to

Armstead, Appellant placed his “thingy” and his finger in her female sexual organ on multiple

occasions and it hurt. Armstead did not conclude in her report—nor did she directly testify—

Appellant was responsible for the penetration that caused A.A.’s injuries. We conclude Armstead’s

testimony was neither conclusory nor speculative as Appellant argues on appeal. Even if the

admission of the complained-of testimony had been erroneous, we conclude such error did not

affect Appellant’s substantial rights. Issue Fifteen is overruled.

Issue Sixteen: Admission of Photographs

In his sixteenth issue, Appellant complains of “egregious” error resulting from the

admission of “several” photographs of A.A.’s genitals, which he claims had little or no probative

value and were calculated to, and likely did, influence the jury in an irrational yet indelible way.

Appellant again asserts the “egregious harm standard” for unpreserved jury charge error applies.

When the State offered the complained-of photographs—State’s Exhibit 9—the trial court

asked, “[i]s there an objection to the admission of Exhibit 9?” Defense counsel answered, “[n]o

objection, Your Honor.” Defense counsel did not object or refer to a pretrial motion to suppress

56
when the photographs were offered. Appellant has waived any error in their admission. See

Thomas v. State, 408 S.W.3d 877, 885–86 (Tex.Crim.App. 2013)(holding that if a reviewing court

is unable to discern from the record as a whole “whether an abandonment was intended or

understood, then, consistent with prior case law, it should regard the ‘no objection’ statement to

be a waiver of the earlier-preserved error. . . . [T]he affirmative ‘no objection’ statement will, by

itself, serve as an unequivocal indication that a waiver was both intended and understood”). Issue

Sixteen is overruled.

Issue Seventeen: Deprivation of Unanimous Verdict

In his seventeenth issue, Appellant asserts he was deprived of his Sixth Amendment right

to a unanimous verdict by the trial court’s submission of a disjunctive application paragraph in its

charge. The charge authorized the jury to find Appellant guilty of sexual abuse by having

committed either the offense of indecency with a child by touching, or the offense of aggravated

sexual assault by penetration of A.A.’s sexual organ by Appellant’s sexual organ. Appellant

contends the trial court violated “this rule” because it instructed the jury it was permitted to convict

him if Appellant committed either act of sexual abuse included in the application paragraph of the

charge. Without citation to the record or any authority, Appellant claims “[i]t may be that in a

normal continuous sexual abuse case that non-unanimity is permitted,” and argues the State chose

to restrict its theory of prosecution to establishing Appellant should be found guilty only if he

committed two or more acts of indecency or two or more acts of aggravated sexual assault of a

child. Appellant argues, under this restricted theory, some jurors could have believed Appellant

committed two or more acts of indecency with a child over a period greater than thirty days while

others could have believed Appellant committed two or more acts of aggravated sexual assault of

a child over a period greater than thirty days. The basis of Appellant’s complaint resides in the

57
language of the submitted charge, which Appellant contends is egregious error.

Standard of Review & Applicable Law

We review charge error under a two-pronged test. Almanza v. State, 686 S.W.2d 157, 171

(Tex.Crim.App. 1984). First, we must determine whether error exists; second, if error exists, we

then evaluate whether the harm is harmless or warrants reversal. Ngo v. State, 175 S.W.3d 738,

743 (Tex.Crim.App. 2005). The degree of harm required for reversal depends on whether the error

was preserved at trial. Almanza, 686 S.W.2d at 171; Neal v. State, 256 S.W.3d 264, 278

(Tex.Crim.App. 2008). If error was preserved, we review for “some harm,” whereas unpreserved

errors are reversible only when the harm is egregious. Almanza, 686 S.W.2d at 171.

Section 21.02(d) of the Texas Penal Code expressly provides that members of a jury “are

not required to agree unanimously on which specific acts of sexual abuse were committed by the

defendant or the exact date when those acts were committed.” TEX.PENAL CODE ANN. § 21.02(d).

The statute only requires the jury agree “unanimously that the defendant, during a period that is

30 or more days in duration, committed two or more acts of sexual abuse.” Id. at § 21.02(d).

Analysis

In the jury charge, the trial court set forth the law regarding the offense of continuous sexual

abuse of a child, including definitions and elements, and directed the jury in part:

You are instructed that members of the jury are not required to agree
unanimously on which specific acts of sexual abuse, if any, were committed by the
Defendant or the exact date when those acts were committed, if any. The jury must
agree unanimously that the Defendant, during a period that was 30 or more days in
duration, committed two or more acts of sexual abuse as that term has been
previously defined.
. . .

Now bearing in mind the foregoing instructions, if you find from the
evidence beyond a reasonable doubt that during a period that was 30 days or more
in duration, to wit: from on or about June 1, 2014 through on or about November
20, 2015, when the Defendant was 17 years of age or older, the Defendant

58
 committed two or more acts of sexual abuse against a child younger than 14 years
of age, namely, indecency with a child by touching the genitals of A.A., a
pseudonym, or by aggravated sexual assault by causing the penetration of the sexual
organ of A.A., a pseudonym, by the sexual organ of Defendant, then you will find
the Defendant guilty of continuous sexual abuse of a young child, as charged in the
indictment.

If you do not so find, or if you have a reasonable doubt thereof, you will
acquit the Defendant and find the defendant not guilty.

During the charge conference, defense counsel affirmatively stated, “Your honor,

defendant does not object to the proposed charge, nor do we have any submissions.” Therefore, in

the presence of error, we will only reverse if we find egregious harm. Almanza, 686 S.W.2d at 171.

Egregious harm determinations must be based on a finding of action rather than theoretical harm.

See Cosio v. State, 353 S.W.3d 766, 777 (Tex.Crim.App. 2011). Harm is egregious if it affected

the very basis of the case, deprived Appellant of a valuable right, or vitally affected a defensive

theory. Id. We assay the actual degree of harm in light of the entire jury charge, the state of the

evidence, the argument of counsel, and any other relevant information revealed by the trial record

as a whole. Almanza, 686 S.W.2d at 171.

Appellant correctly notes the Court of Criminal Appeals has instructed, “[w]hen the State

charges different criminal acts, regardless of whether those acts constitute violation of the same or

different statutory provisions, the jury must be instructed that it cannot return a guilty verdict unless

it unanimously agrees upon the commission of any one of these criminal acts.” Ngo, 175 S.W.3d

at 744. The court also observed, “[u]nder our state constitution, jury unanimity is required in felony

cases, and, under our state statutes, unanimity is required in all criminal cases.” Id. at 745.

Unanimity in this context means each juror must agree the defendant committed the same, single,

specific criminal act. Id.; Holton v. State, 487 S.W.3d 600, 606 (Tex.App.—El Paso 2015, no pet.).

It is well-settled, however, a jury is only required to unanimously agree on each “element” of the

59
offense, not on the “manner and means” by which the defendant committed the offense. See, e.g.,

Jefferson v. State, 189 S.W.3d 305, 315 (Tex.Crim.App. 2006). In order to guarantee unanimity,

“the jury must be unanimous in finding every constituent element of the charged offense in all

criminal cases.” Jourdan v. State, 428 S.W.3d 86, 94 (Tex.Crim.App. 2014)(citing Pizzo v. State,

235 S.W.3d 711, 714 (Tex.Crim.App. 2007)). However, when an indictment alleges differing

methods of committing an offense in the conjunctive, it is proper for the jury to be charged in the

disjunctive. Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991). Instructing the jury on

alternate theories of committing the same offense, in contrast to instructing the jury on two separate

offenses involving separate incidents, does not violate the unanimity requirement. Saenz v. State,

451 S.W.3d 388, 390 (Tex.Crim.App. 2014)(citing Martinez v. State, 129 S.W.3d 101, 103

(Tex.Crim.App. 2004)). Here, the key question is whether the specific acts of sexual abuse

enumerated in the continuous sexual abuse statute are true elements of the offense, or whether they

are merely the manner and means by which one of the elements is accomplished. If they are

elements, jury unanimity is required; if they are manner and means, jury unanimity is not required.

Casey v. State, 349 S.W.3d 825, 828 (Tex.App.—El Paso 2011, pet. ref’d).

Texas courts, which have addressed this issue, have concluded the acts of sexual abuse

listed in the statute are not elements of the offense; the element of the offense upon which jury

unanimity is required is “[t]he commission of two or more acts of sexual abuse over a specified

time period—that is, the pattern of behavior or the series of acts[.]” See McMillian v. State, 388

S.W.3d 866, 872 (Tex.App.—Houston [14th Dist.] 2012, no pet.). The “series” itself is the key

“element” of the offense upon which jury unanimity is required; the individual acts of sexual abuse

enumerated in the statute are simply the “manner and means” by which the series is committed.

Accordingly, while the jury must unanimously agree that the “series” of acts were committed

60
within the specified time frame, the jury is not required to unanimously agree on which specific

acts the defendant committed. See Jacobsen v. State, 325 S.W.3d 733, 737 (Tex.App.—Austin

2010, no pet.); see also Pollock v. State, 405 S.W.3d 396, 405 (Tex.App.—Fort Worth 2013, no

pet.); Casey, 349 S.W.3d at 829. The trial court did not err when it submitted a disjunctive charge

to the jury. It properly instructed the jury that it was not required to agree unanimously on the

specific act of sexual abuse or on the date those acts may have occurred and was correct in

instructing the jury it was required to unanimously agree that Appellant, during a period that was

thirty or more days in duration, committed two or more acts of sexual abuse as defined in the

charge. Kitchens, 823 S.W.2d at 258. Therefore, the trial court’s charge authorized the jury to find

Appellant committed two or more acts of sexual abuse by committing indecency with a child or

by committing aggravated sexual assault of a child. Issue Seventeen is overruled.

Issue Eighteen: Credibility

In his eighteenth issue, Appellant asserts the State’s prosecutor committed “egregious”

error during closing arguments because he allegedly vouched for and bolstered his own credibility,

the law enforcement officers’, Jansky’s, Armstead’s, and A.A.’s. Relying solely on federal circuit

court precedent, Appellant urges us to adopt the “plain error analysis” utilized in federal courts for

unpreserved jury argument error. We decline this request and continue to analyze alleged

erroneous jury argument complaints within the existing framework of Texas jurisprudence.

Applicable Law

In Texas, “[t]he right to a trial untainted by improper jury argument is forfeitable” and is

subject to the normal rules of error preservation. Hernandez v. State, 538 S.W.3d 619, 622

(Tex.Crim.App. 2018)(citing Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App 1996)). The

trial judge “has no duty to enforce forfeitable rights unless requested to do so.” Marin v. State, 851

61
S.W.2d 275, 279-80 (Tex.Crim.App. 1993). To preserve 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). “[T]o cure erroneous jury argument, the defendant must

object and pursue his objection to an adverse ruling.” Hernandez, 538 S.W.3d at 622. A defendant

who fails to pursue his objection to an adverse ruling forfeits his right to complain on appeal. Id.

“Even an inflammatory jury argument is forfeited if the defendant does not pursue his objection to

an adverse ruling.” Id. at 622–23 (citing Estrada v. State, 313 S.W.3d 274, 303 (Tex.Crim.App.

2010)(observing that even if a prosecutor’s argument was so egregious that it could not be cured

by an instruction to disregard, the defendant “should have moved for a mistrial to preserve this

error”).

We need not address the State’s correct observation Appellant’s issue is multifarious.

Appellant did not object at trial to any of the arguments within this issue. Appellant has forfeited

his right to complain about the prosecutor’s alleged erroneous jury arguments. Issue Eighteen is

overruled.

Issues Nineteen and Twenty: Improper Jury Argument

In his nineteenth issue, Appellant complains “[e]gregious error resulted from the

prosecutor’s misstatement of the evidence in his closing argument and in his failure to make

reasonable deductions from the evidence.” Again, because Appellant failed to object at trial on

this basis, we need not address the State’s contention this issue is multifarious. In his twentieth

issue, Appellant asserts egregious error occurred during closing argument when the prosecutor

repeatedly referred to him as a “monster.”

Appellant was required to object to the complained-of jury arguments in the trial court in

order to preserve them for our review. TEX.R.APP.P 33.1; Hernandez, 538 S.W.3d at 622–23.

62
Appellant did not object to any argument he now complains of within these issues. Consequently,

Appellant has forfeited his right to complain of the prosecutor’s alleged erroneous jury arguments.

Issues Nineteen and Twenty are overruled.

Issue Twenty-One: Constitutional Challenge

In his twenty-first issue, Appellant asserts Texas Penal Code Section 21.02 is

unconstitutional both on its face and as applied in this case because neither the indictment nor the

court’s charge required the jury to unanimously agree on the specific sexual offenses upon which

they based their verdict, in violation of his Sixth Amendment right to a unanimous jury verdict.

A defendant may not raise for the first time on appeal a facial challenge to the

constitutionality of a statute. Karenev v. State, 281 S.W.3d 428, 434 (Tex.Crim.App. 2009).

Appellant does not direct us to—nor are we aware of—any portion of the trial record that

demonstrates Appellant challenged the constitutionality of Texas Penal Code Section 21.02 on its

face. Even constitutional errors may be waived by failure to object at trial. Briggs v. State, 789

S.W.2d 918, 924 (Tex.Crim.App. 1990), overruled on other grounds by, Karenev, 281 S.W.3d at

434. To preserve error, a defendant must make a specific, timely challenge to the constitutionality

of a statute as applied to him. Curry v. State, 910 S.W.2d 490, 496 (Tex.Crim.App. 1995); see also

Holton v. State, 487 S.W.3d 600, 606–07 (Tex.App.—El Paso 2015, no pet.)(examining the

constitutionality of Section 21.02 and concluding Appellant was not deprived of his constitutional

right to a unanimous verdict and upholding the constitutionality of that statute). Appellant failed

to preserve his constitutional claims at trial. Issue Twenty-One is overruled.

Issues Twenty-Two & Twenty-Three: Cumulative Effect

In his twenty-second issue, Appellant complains “the cumulative effect of the improper

admission of all hearsay evidence[,]” which Appellant identifies as State’s Exhibits 2, 3, 4, and 6,

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as well as the complained-of hearsay statements the State adduced through the testimony of

Sergeant Gonzalez, “was so harmful that [he] was deprived of any chance of a fair trial.” Appellant

quantifies the alleged inadmissible hearsay as constituting “more than half of all of the evidence

in the case.” This constitutes the entirety of Appellant’s argument, and he cites neither to the

record, nor to any authority, in support of his contentions.

We conclude this issue is inadequately briefed. An appellant’s brief must contain a clear

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

record. TEX.R.APP.P. 38.1(i). This requirement is not satisfied by conclusory statements

unsupported by legal citations. See King v. State, 17 S.W.3d 7, 23 (Tex.App.—Houston [14th

Dist.] 2000, pet. ref’d). Conclusory arguments which cite no authority present nothing for our

review. See Vuong v. State, 830 S.W.2d 929, 940 (Tex.Crim.App. 1992). Because Appellant has

inadequately briefed this issue, he has waived error, if any. Issue Twenty-Two is overruled.

In his twenty-third issue, Appellant asserts “the cumulative effect of the errors identified

in all [issues] . . . (i.e., [issues] 2 through 19) warrant vacating his conviction and granting him a

new trial[.]” Appellant next cites, without discussion or application, two cases for the proposition

that “it is possible for a number of errors to cumulatively rise to the point where they become

harmful.” Gamboa v. State, 296 S.W.3d 574, 585 (Tex.Crim.App. 2009)(citing Stahl v. State, 749

S.W.2d 826, 832 (Tex.Crim.App. 1988)). This is the entirety of Appellant’s argument.

Although Appellant has cited to legal authority, he has provided no analysis in support of

his contention. We have no obligation to construct and compose issues, facts, and arguments for

an appellant. Wolfe v. State, 509 S.W.3d 325, 343 (Tex.Crim.App. 2017); see also Linney v. State,

413 S.W.3d 766, 767 (Tex.Crim.App. 2013)(Cochran, J., concurring in refusal to grant petition for

discretionary review)(“Failure to provide substantive legal analysis—‘to apply the law to the

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facts’—waives the point of error on appeal. If the appealing party fails to meet its burden of

adequately discussing its points of error, this Court will not do so on its behalf.”)[Internal citations

omitted]. Issue Twenty-Three is overruled.

CONCLUSION

For these reasons, we affirm.

September 27, 2021
YVONNE T. RODRIGUEZ, Chief Justice

Before Rodriguez, C.J., Palafox, and Alley, JJ.

(Do Not Publish)

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