In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00434-CR
___________________________
ROBERT F. HALLMAN, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 1
Tarrant County, Texas
Trial Court No. 1548964R
Dissenting Opinion by Justice Womack
DISSENTING OPINION ON REMAND
I. INTRODUCTION
The majority1 holds that the trial court abused its discretion by denying
Appellant Robert F. Hallman’s motion for mistrial and that the resulting harm
affected his substantial rights. Therefore, the majority reverses the trial court’s
judgment and remands the case for a new trial.
The majority’s disposition stems from thirteen pages of undisclosed
discovery—and in particular Hallman’s ex-wife’s (Kim’s) ten-line handwritten witness
statement—from an extraneous incident that occurred over a year and a half before the
initial outcry of sexual abuse in this case. This prior incident involved neither
allegations of sexual abuse nor allegations of any kind against Hallman by the
complainants (Rita and Amy) but instead involved Hallman’s physical assault of his
ex-wife and son (Ron). Hallman claims that lack of access to this discovery in the
guilt–innocence stage deprived him of the opportunity to fully develop his defensive
theory that his ex-wife and the complainants were lying. Because (1) the offense
1
For ease of reference, I use the term “majority” to refer to the opinion
authored by Justice Wallach in this case. I recognize, however, that in the concurring
opinion authored by Justice Walker, Justice Walker notes that he “cannot join the
majority opinion,” although he does agree with the result of the judgment. See Tex. R.
App. P. 41.1(a) (“A majority of the panel, which constitutes a quorum, must agree on
the judgment.”). Therefore, while there is a majority of the panel agreeing to the
judgment, we may not have a “majority opinion.” See Unkart v. State, 400 S.W.3d 94,
100 (Tex. Crim. App. 2013) (“An ‘opinion of the Court’ or ‘majority opinion’ is one
that is joined by a majority of the judges participating in the case.”).
2
report from the extraneous incident—containing essentially the same information as
the written statement—was timely disclosed, (2) Hallman was able to successfully
impeach his ex-wife’s testimony through the investigating detective’s testimony on the
same issue, and (3) the great weight of the evidence—which involved twelve guilt–
innocence stage witnesses over the course of an eight-day jury trial—supports the
conviction, I would hold that the trial court did not abuse its discretion by denying the
motion for mistrial and that Hallman’s substantial rights were not affected by the trial
court’s denial of the motion for mistrial. Therefore, I respectfully dissent.
II. THE APPROPRIATE ANALYSIS: MOSLEY OR RULE 44.2(B)?
In granting the State’s petition for discretionary review, the Court of Criminal
Appeals remanded this case to us “for further consideration and disposition
consistent with Watkins [v. State, 619 S.W.3d 265 (Tex. Crim. App. 2021)].” Hallman v.
State, 620 S.W.3d 931, 931–32 (Tex. Crim. App. 2021). As a preliminary matter, it is
unclear how we should analyze Hallman’s appeal. In his supplemental brief, Hallman
argues that we should apply the harm analysis under Texas Rule of Appellate
Procedure 44.2(a), requiring reversal unless it can be determined beyond a reasonable
doubt that the error did not contribute to his conviction. See Tex. R. App. P. 44.2(a).
The State counters that the proper harm analysis here is under Texas Rule of
Appellate Procedure 44.2(b), requiring error to be disregarded if it does not affect
Hallman’s substantial rights. See Tex. R. App. P. 44.2(b). Alternatively, if the standard
for reviewing the denial of a motion for mistrial applies, the State argues that the
3
three-factor test in Mosley v. State applies. 983 S.W.2d 249, 259 (Tex. Crim. App.
1998). The Mosley factors are: (1) the severity of the misconduct, (2) the measures
adopted to cure the misconduct, and (3) the certainty of conviction absent the
misconduct. Id. After discussing these various analyses, the majority applies the
Mosley test to evaluate whether the trial court abused its discretion by denying
Hallman’s motion for mistrial.
However, it is not clear whether the use of the Mosley factors is appropriate for
the issue raised in this appeal. The Mosley factors seem to be chiefly utilized in cases
involving a motion for mistrial following improper argument by a prosecutor. See, e.g.,
Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007) (applying Mosley factors in
case involving improper argument made by a prosecutor); Hawkins v. State,
135 S.W.3d 72, 75–76 (Tex. Crim. App. 2004) (same); Mosley, 983 S.W.2d at 259
(same); see also Garcia v. State, No. 10-12-00202-CR, 2013 WL 3482009, at *1 (Tex.
App.—Waco July 11, 2013, pet. ref’d) (mem. op., not designated for publication)
(“Because the Court of Criminal Appeals has not adopted the Mosley/Hawkins factors
in evaluating the denial of a motion for mistrial pursuant to any reason other than
improper argument . . . we do not use those factors in our review . . . .”).
Indeed, when the Texas Court of Criminal Appeals established the Mosley
factors, it noted that the factors had previously been applied by federal courts when
addressing “improper argument cases.” Mosley, 983 S.W.2d at 259. Mosley itself was
an improper argument case, which can be seen in Mosley’s recitation of the first
4
factor: “severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s
remarks).” Id. (emphasis added). The Mosley factors are not typically used to review a
case like this one, where the motion for mistrial was raised in the punishment stage
following the untimely disclosure of Article 39.14(h) evidence during that stage. And
it is perhaps no wonder that they are not used, as Mosley’s second factor—the
measures adopted to cure the misconduct—is entirely inapplicable here because the
complained-of evidence was not provided until the punishment stage, thus making
any cure impossible.
Instead of utilizing the Mosley factors, the issue of whether the trial court
abused its discretion by denying Hallman’s motion for mistrial is best addressed by
determining whether the State’s violation of Article 39.14(h) affected Hallman’s
substantial rights—essentially, a harm analysis under Texas Rule of Appellate
Procedure 44.2(b). See Tex. R. App. P. 44.2(b). This approach is consistent with our
recent opinion in Sopko v. State, 637 S.W.3d 252 (Tex. App.—Fort Worth 2021, no
pet.), where we held that a harm analysis under Rule 44.2(b) was necessary to address
a statutory violation of Article 39.14. This approach also squares with how some of
our sister courts have addressed violations of Article 39.14. See Williamson v. State,
No. 04-20-00268-CR, 2021 WL 4976326, at *3 (Tex. App.—San Antonio Oct. 27,
2021, no pet.) (mem. op., not designated for publication) (“Violations of statutory
duties under [A]rticle 39.14 of the Texas Code of Criminal Procedure warrant a harm
analysis.”); Perkins v. State, No. 03-19-00356-CR, 2021 WL 2172547, at *3 (Tex.
5
App.—Austin May 28, 2021, no pet.) (mem. op., not designated for publication)
(“Reviewing courts must conduct a harm analysis before determining whether reversal
is proper for violation of [A]rticle 39.14.”).
This analysis is still consistent with Hawkins, where the Texas Court of Criminal
Appeals cautioned that “[a] harm analysis is employed only when there is error, and
ordinarily, error occurs only when the trial court makes a mistake” but also
acknowledged that “whether a mistrial should have been granted involves most, if not
all, of the same considerations that attend a harm analysis.” 135 S.W.3d at 76–77.
And, applying a Rule 44.2(b) harm analysis cuts to the heart of the issue—the impact
of the State’s failure to timely disclose the complained-of thirteen pages—better than
applying the Mosley factors.2
While applying a Rule 44.2(b) harm analysis appears to be the appropriate
method for analyzing Hallman’s issue on appeal, I will analyze the issue under both
the Mosley factors and Rule 44.2(b). Regardless of which analysis is used, I conclude
that the trial court did not abuse its discretion by denying Hallman’s motion for
mistrial.
Rule 44.2(b) is not limited to addressing “errors”—the Rule expressly states,
2
“Any other error, defect, irregularity, or variance that does not affect substantial rights
must be disregarded.” Tex. R. App. P. 44.2(b).
6
III. ANALYSIS UNDER MOSLEY
As noted above, the majority applied the three Mosley factors to assess whether
the trial court abused its discretion by denying Hallman’s motion for mistrial. I will
address these factors in turn.
A. The Severity of the Misconduct
Prejudicial effect is the touchstone of the first Mosley factor. Hawkins,
135 S.W.3d at 77; West v. State, No. 02-18-00109-CR, 2019 WL 3491937, at *2 (Tex.
App.—Fort Worth Aug. 1, 2019, no pet.) (mem. op., not designated for publication).
Thus, to analyze the severity of the misconduct present here, one must assess the
prejudicial effect of the complained-of thirteen pages, which include the following:
(1) Detective Robles’s affidavit, (2) Hallman’s handwritten statement, (3) Kim’s
handwritten statement, and (4) a family-violence packet.
1. The Prejudicial Effect of Detective Robles’s Affidavit
Detective Robles’s affidavit is a one-page document in which he describes what
occurred during the August 10, 2014 incident. As noted by the majority, “Detective
Robles’s affidavit contained the same information as his offense report.” Indeed,
Detective Robles’s affidavit is a near-verbatim repeat of the information contained in
his offense report. Notably, the offense report was disclosed to Hallman during
pretrial discovery. Thus, because the substance of the information contained in
Detective Robles’s affidavit is the same as the substance of the information contained
in the offense report, the untimely disclosure of Detective Robles’s affidavit had no
7
prejudicial effect. See Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000) (holding
that because information contained in undisclosed pathologist’s report was materially
the same as information contained in witness’s testimony, there was “no reasonable
probability that, had the [pathologist’s report] been disclosed to the defense, the
outcome of the proceeding would have been different”).
2. The Prejudicial Effect of Hallman’s Handwritten Statement
Hallman’s handwritten statement is a one-page document in which he describes
what occurred during the August 10, 2014 incident. In his statement, Hallman
describes that he went to his neighbor’s house to wait on his sister to pick Amy and
him up; that Kim followed Amy and him to the neighbor’s house; that Kim grabbed
Amy and him; that Amy began having an asthma attack and said she could not
breathe; that he pulled Kim off Amy; that Ron bit him; and that Ron was
unintentionally bumped in the process. The information contained in the offense
report—which was disclosed to Hallman in pretrial discovery—contains materially the
same information as that contained in Hallman’s handwritten statement. The offense
report describes how Hallman told officers that he was going to his neighbor’s house
to call his sister to come and pick him up; that Amy wanted to leave with him and
followed him; that Kim grabbed him and tried to get his phone out of his pocket; that
Kim grabbed Amy; that Amy told Hallman that she could not breathe; that Hallman
grabbed Kim to try and pull her away from Amy; that Ron bit him; and that he did
not hit Ron unless it was by accident.
8
Because the substance of the information contained in Hallman’s handwritten
statement is the same as the substance of the information contained in the offense
report (neither of which mentions any allegation of sexual abuse), the untimely
disclosure of Hallman’s handwritten statement had no prejudicial effect. See id.
Moreover, there cannot be any prejudicial effect stemming from the untimely
disclosure of Hallman’s handwritten statement because Hallman made the statement
and was thus aware of its contents.3 See Havard v. State, 800 S.W.2d 195, 204 (Tex.
Crim. App. 1989) (“[A]ppellant knew of both the existence and the content of his
statement, as a matter of simple logic, because he was there when it was made.”); see
also Garcia v. State, No. 13-15-00527-CR, 2017 WL 3530926, at *3 (Tex. App.—Corpus
Christi–Edinburg Aug. 17, 2017, no pet.) (mem. op., not designated for publication)
(“[A]ppellant’s complaint relates to the disclosure of information already known to
appellant—his own statement to law enforcement. The State has no affirmative duty
to disclose information already known to a defendant.”).
3. The Prejudicial Effect of Kim’s Handwritten Statement
Kim’s handwritten statement is a one-page document containing approximately
four sentences in which she describes what occurred during the August 10, 2014
incident. In her statement, Kim describes Amy trying to leave with Hallman to go to
3
The offense report also mentioned that Hallman “was given his chance to
write his statement,” which should have alerted Hallman and his counsel to the
potential existence of Hallman’s handwritten statement.
9
his sister’s house to smoke marijuana; Kim refusing to let Amy go; Hallman telling
Amy to run away; Kim going to the neighbor’s house and taking Amy by the arm and
trying to pull her back; Hallman hitting Kim in the right arm and twisting her arms
behind her back; Ron biting Hallman; and Hallman hitting Ron in the face and
stomach.
Hallman takes issue with the untimely disclosure of Kim’s handwritten
statement because while Kim testified that she had told police officers during the
August 10, 2014 incident that she suspected Hallman of sexually abusing Amy, Kim’s
handwritten statement does not mention sexual abuse. Hallman contends that he
would have impeached Kim with her handwritten statement if it had been timely
disclosed. And, according to the majority, “there was no better evidence with which
to impeach Kim’s testimony about her sexual-abuse suspicions than her own written
words.” I disagree.
The credibility of Kim’s statement that she had told police officers during the
August 10, 2014 incident that she suspected Hallman of sexually abusing Amy was
already called into question through the testimony of Detective Robles. Detective
Robles specifically testified that Kim “never said anything” to him regarding her
concern that one of her children was being sexually abused. Detective Robles further
testified that there was no mention to Officer Oakley—another officer at the scene on
August 10, 2014—regarding any concern that one of Kim’s children was being
sexually abused. If Kim had mentioned any concerns about sexual abuse of her
10
children, Detective Robles said that he “would have investigated further.” Detective
Robles also testified that he had not been trained in how to interview children about
sexual abuse and that it would not have been appropriate for him to “have gone over
to any of the children involved in this case and start[ ] asking about where [Hallman]
had touched them.”
Any gap between the potential value of attacking Kim’s credibility through her
handwritten statement and the value of attacking Kim’s credibility through Detective
Robles’s testimony is minimal. If anything, Detective Robles’s testimony is better
impeachment evidence than Kim’s handwritten statement because his testimony
actually contradicts Kim’s testimony that she had told police officers about her
suspicions of sexual abuse, while Kim’s handwritten statement is merely silent on the
issue.4 Moreover, the information contained in Kim’s handwritten statement is
substantially similar to the information contained in the offense report regarding what
Kim told police officers on August 10, 2014. The information in the offense report—
which was disclosed during pretrial discovery—does not mention that Kim told police
officers about her suspicion of Hallman’s sexual abuse. Hallman could have attacked
The majority states that “while Kim claimed at trial that on August 10, 2014,
4
she had told the police that she suspected Hallman was sexually abusing Amy, her
own written statement clearly demonstrates otherwise.” This conclusion goes too far.
Just because Kim’s handwritten statement, which spans just a handful of sentences,
does not mention her report of sexual abuse to police officers on August 10, 2014,
that does not “clearly demonstrate” that she did not voice her suspicions to police.
11
Kim’s credibility with the offense report in almost exactly the same way that he could
have attacked her credibility with her handwritten statement.
Finally, to the extent that Kim’s handwritten statement could have been
valuable in attacking her credibility in ways that could not have been done through
Detective Robles’s testimony or the disclosed offense report, that value is minimal
when understood in the context of the entire case. First, this extraneous incident
occurred over a year and a half before the first outcry in this case. Second, it involved
Hallman’s assaulting Kim and Ron, not his sexually assaulting the complainants.5
Third, Kim is just one witness among many, and as I explain below, there is
substantial evidence to support Hallman’s conviction. There is no rational
explanation for how Hallman’s potential cross-examination of Kim with her
handwritten statement would be the proverbial “straw that broke the camel’s back.”
4. The Prejudicial Effect of the Family-Violence Packet
The family-violence packet contains a few pages of information relating to the
August 10, 2014 incident and was filled out by Officer Oakley, one of the police
5
Indeed, it was the credibility of the complainants that was emphasized by the
State in its opening statement: “[Y]our job is to weigh the credibility of these girls. . . .
After you hear from all of the evidence, all of the witnesses in this case, it comes
down to the girls. And you’re going to weigh whether or not you believe them.” The
emphasis on the credibility of the complainants continued in closing argument when
the State said, “These are the kinds of cases, these child sexual abuse cases comes
down to do you believe them or not. . . . Today is the opportunity that you can tell
them that despite what happened to them in 2010, 2011, 2012, 2013, ’14, ’15 and ’16,
that today, we believe you.”
12
officers responding to the August 10, 2014 incident. Hallman complains about the
untimely disclosure of the family-violence packet, arguing that he would have used the
family-violence packet to attack Kim’s credibility during the guilt–innocence stage of
the trial.
Hallman points to two checklists in the family-violence packet, one titled
“Condition of Victim Upon Officer Arrival” and the other titled “Description of
Incident,” arguing that he would have attacked Kim’s credibility with the fact that
Officer Oakley did not check the box for “Sexual Assault” on either checklist.
However, Kim’s credibility could not be effectively attacked through this evidence
because the checklist relating to the condition of the victim (i.e., the condition of Kim
and Ron) would not capture any report of sexual assault against Amy, nor would the
checklist relating to the description of the incident (i.e., the physical assault on
August 10, 2014, not a prior sexual assault) capture a report of sexual assault.
Hallman also notes that the checklist titled “Description of Incident” contains
boxes for “Threat of Retaliation” and “Threat of Physical Violence” and that those
boxes were unchecked. Hallman argues that he would have attacked Kim’s credibility
with this evidence because Kim had testified that Hallman had once stated that he
would “kill all of us” if he ever went to jail. Once again, this does not explain how
Kim’s credibility would be effectively attacked through this evidence because that
checklist related to the description of the August 10, 2014 incident, which did not
involve any threats of retaliation or threats of physical violence.
13
Hallman also points to a checklist titled “Demeanor on scene,” which contains
a checked box for “Calm” to reflect the respective demeanors of Rita, Amy, and Kelly
(another daughter of Hallman’s) during the August 10, 2014 incident. Hallman argues
that he would have used this evidence to attack Kim’s credibility because she had
testified that Amy and Kelly had been upset during the August 10, 2014 incident.
Again, I do not see how Kim’s credibility would be effectively attacked through this
evidence. The alleged discrepancy can be easily explained as the children being calm
during one part of the incident and upset during another. This explanation gains
credence because the offense report noted that Amy “got upset” when asked by
police for further details of the incident. Moreover, any discrepancy between Kim’s
testimony and the checklist regarding the children’s demeanor during the August 10,
2014 incident does not undermine the substantial testimony detailing Hallman’s sexual
abuse of Amy.
And while I do not see how the timely disclosure of the family-violence packet
would have any value in attacking Kim’s credibility, to the extent that it does contain
some value, the offense report contains much of the same information as the family-
violence packet. Much like the family-violence packet, the offense report does not
mention sexual abuse nor does it mention threats of physical violence. Hallman could
14
have attacked Kim’s credibility with the offense report in much the same way that he
could have attacked her credibility with the family-violence packet.6
5. Summary of the Prejudicial Effect of the Complained-Of Evidence
In sum, I do not think that the untimely disclosure of the complained-of
evidence had a prejudicial effect on Hallman. See Hawkins, 135 S.W.3d at 77; West,
2019 WL 3491937, at *2. Much of the information contained in the complained-of
evidence was also contained in the timely-disclosed offense report. Hallman had
other means to attack Kim’s credibility outside of the complained-of evidence—most
notably through Detective Robles’s testimony and the offense report—and any value
that Hallman could have gained by using the complained-of evidence was de minimis.
The first Mosley factor weighs against Hallman.
B. The Measures Adopted to Cure the Misconduct
The second Mosley factor—the measures adopted to cure the misconduct—
does not appear applicable here, and the parties evidently agree. In Hallman’s brief
on remand, he states, “The second factor, curative measures, is inapplicable since
there were none. The evidence was not revealed until the damage was done and the
verdict returned.” In the State’s brief on remand, the State notes, “[B]ecause the only
relief requested was a motion for mistrial, which was denied by the trial court,
consideration of the second factor—measures adopted to cure the misconduct—is
Notably, the offense report mentioned that “[t]he Family Violence Packet was
6
completed.” That reference, like the one to Hallman’s statement, should have put
Hallman and his counsel on notice of the existence of the family-violence packet.
15
largely irrelevant. As such, the State will focus on the first and third factors of the
Mosley test.”
Despite the parties’ lack of emphasis on the second Mosley factor, the majority
states that this factor “weigh[s] heavily in favor of a mistrial.” According to the
majority, this is so because “nothing in the record before us reflects that the elected
judge in this case took any steps to mitigate the harm from the belated disclosure or
to familiarize herself with the guilt–innocence proceedings.” This reasoning fails for
two reasons. First, because the complained-of evidence was not provided to Hallman
until the punishment stage, there was nothing for the trial court to cure. The trial
court could not go back to the guilt–innocence stage—it could only either grant
Hallman’s motion for mistrial or deny it.7
Second, I fail to see how any failure on the trial court’s part to properly
familiarize itself with the guilt–innocence proceedings would have had any impact on
the trial court’s ability to cure the untimely disclosure of the complained-of evidence.
The trial court could have spent several days reading the trial transcript and reviewing
every exhibit admitted, but that would not change the fact that the trial court could
not go back to the guilt–innocence stage. As such, the second Mosley factor is either
The majority seemingly recognizes that there was nothing for the trial court to
7
cure, noting that “a continuance to assess the evidence’s use was too late and any
subsequent cross-examination of Kim using that impeachment evidence would have
been pointless.”
16
inapplicable or neutral to the determination of whether the trial court abused its
discretion by denying Hallman’s motion for mistrial.
C. The Certainty of Conviction Absent the Misconduct
The third Mosley factor—the certainty of conviction absent the misconduct—is
measured by looking at the strength of the evidence supporting the conviction.
Archie, 221 S.W.3d at 700; Mosley, 983 S.W.2d at 259. In holding that Hallman’s
conviction was not certain absent the untimely disclosure of the complained-of
evidence, the majority describes this appeal as a “classic he-said, she-said” case and
focuses on “the curious timing of Rita’s and Amy’s delayed outcries, the filing of
Kim’s May 2016 divorce petition, in which Kim did not mention any alleged sexual
abuse, and some of the discrepancies in her testimony.”
However, the majority’s analysis largely ignores the strength of the evidence
supporting Hallman’s conviction. And I would not describe this as a “classic he-said,
she-said” case. Twelve witnesses testified during the guilt–innocence stage of
Hallman’s trial. Thus, I would describe this case as a “she-said, he-said, he-said, she-
said, she-said, he-said, she-said, she-said, she-said, he-said, he-said, she-said case.”
The majority does a fine job of taking on the herculean task of detailing the
testimony from these twelve witnesses, and I will not belabor the issue by once again
detailing all of their testimony. I will, however, briefly summarize some of the
pertinent testimony to assess the strength of the evidence supporting Hallman’s
conviction.
17
• Amy’s Testimony: Amy, who was eighteen at the time of trial, testified about
being sexually assaulted by Hallman on numerous occasions, and she gave detailed,
sensory accounts of the sexual assaults. She testified that when she was in the seventh
or eighth grade, Hallman, Rita, and she had played a game called “butt plugs” where
Hallman ended up pulling down the girls’ pants and putting his hand between their
buttocks. She also testified that when she was “[p]robably about 12,” Hallman had
pulled down her school uniform and put his mouth on her vagina. After Amy pushed
Hallman’s head away, he pulled his pants down and inserted his penis into her vagina.
Amy testified about occasions “in the computer room” when Hallman had made her
perform oral sex on him and testified about occasions when Hallman would make her
touch his penis while he was “looking at inappropriate things on his phone.” She also
testified that when she had stayed with Hallman at a hotel for a couple of months
when she was sixteen, she awoke to Hallman on top of her, “trying to stick his penis
into [her] vagina.” Amy testified that the abuse occurred “just about on a day-to-day
basis” from 2012 through 2016, and included finger-to-vagina contact, mouth-to-
vagina contact, penis-to-vagina contact, hand-to-penis contact, mouth-to-penis
contact, hand-to-breast contact, and mouth-to-breast contact. Amy also testified that
she had seen Hallman “cree[p]” into the bedroom that she shared with Rita, saw him
get into Rita’s bed, and saw his hands moving around Rita.
18
• Rita’s Testimony: Rita, who was twenty at the time of trial, testified that she
had never witnessed Hallman touch Amy in a sexual manner. Rita, however, testified
that “when me or my sister wanted something from [Hallman], he would
always . . . tell us to do things . . . to him, or we had to let him see one of our private
parts if we wanted something like clothes or shoes or anything.” Rita also testified
that “[a]t nighttime, [Hallman] would come into [her] room, and he would stick his
hand in [her pants] and play with [her] vagina”—testimony that largely mirrored
Amy’s description of Hallman’s abuse of Rita.
• Kim’s Testimony: Kim testified that Hallman bought Amy and Rita lingerie
and that she thought it was inappropriate. She also testified that Hallman “would
have [Amy] outside in the truck with him . . . late at night on school nights” and that
Amy would be wearing “just her robe to get in the truck with him.” Kim also
described how when Hallman and Amy spent the night at Hallman’s sister’s house,
Amy would sleep in the same room as Hallman. Kim testified that Hallman treated
Amy “more like his wife” than his daughter. Kim also testified about an occasion
when she confronted Hallman with an allegation that he had asked Rita to rub
Vaseline on his penis, and Hallman told Kim that “[h]e thought that his 12-year old
daughter [Rita] was actually [Kim].”
• Theresa Fugate’s Testimony: Theresa Fugate, a sexual assault nurse examiner
who had conducted a sexual assault exam on Amy and Rita, testified that Amy told
19
her that Hallman had started sexually abusing her when she was twelve years old and
that the abuse included penis-to-vagina contact, finger-to-vagina contact, mouth-to-
vagina contact, and hand-to-penis contact. Fugate also testified that Rita had told her
about the incident when Hallman had asked Rita to rub Vaseline on his penis. Rita
also relayed to Fugate instances when Hallman had come into Rita’s room at night
and touched her vagina.
• Samantha Torrance’s Testimony: Samantha Torrance, who had conducted
forensic interviews of Amy and Rita, testified that she did not have any concerns that
Amy or Rita had been coached. Torrance testified that Amy had made an outcry of
sexual abuse to her and that Amy disclosed peripheral and sensory details to her.
Torrance likewise testified that Rita had made an outcry of sexual abuse to her and
that Rita had also disclosed peripheral and sensory details to her. Notably, Torrance
testified that “[i]t’s not very common that a kid gets sexually abused one time and
immediately tells. It’s more common that they might kind of test the waters a little bit
and see how people are going to react. They might deny it for a really long time at
first . . . .”
• Detective Jonathan McKee’s Testimony: Detective McKee, who was assigned
to Hallman’s case following Rita’s outcry, testified that “children decide to disclose
their abuse when they’re ready to talk about it. And a lot of times that’s not right
20
away.” Detective McKee also testified that Amy had talked about being sexually
abused in a hotel.
In sum, there is a substantial amount of evidence from various witnesses,
including the complainants, tending to prove that Hallman had sexually abused Amy.
This factor weighs heavily against Hallman.8 See Archie, 221 S.W.3d at 700; Mosley,
983 S.W.2d at 259.
D. Summary of the Analysis under Mosley
After applying the Mosley factors, I have concluded that the first factor weighs
against Hallman, the second factor is either inapplicable or neutral, and the third
factor weighs heavily against Hallman. As such, to the extent that the Mosley factors
are appropriate to address Hallman’s argument on appeal, I would hold that the trial
court did not abuse its discretion by denying Hallman’s motion for new trial, and I
would overrule Hallman’s sole point of error. See Mosley, 983 S.W.2d at 259.
IV. ANALYSIS UNDER RULE 44.2(b)
As discussed above, I think that the correct way to analyze Hallman’s argument
on appeal is to ascertain whether the State’s violation of Article 39.14(h) violated
Hallman’s substantial rights. See Tex. R. App. P. 44.2(b).
8
While the majority emphasizes the “curious timing of Rita’s and Amy’s delayed
outcries,” the record reflects that children often delay outcries of sexual abuse and
“test the waters a little bit and see how people are going to react.”
21
An error that has a “substantial and injurious effect or influence in determining
the jury’s verdict” affects a substantial right. Haley v. State, 173 S.W.3d 510, 518 (Tex.
Crim. App. 2005); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing
Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely,
an error does not affect a substantial right if we have “fair assurance that the error did
not influence the jury, or had but a slight effect.” Solomon v. State, 49 S.W.3d 356, 365
(Tex. Crim. App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
In determining the likelihood that a nonconstitutional error adversely affected the
jury’s decision, we review the record as a whole, including any testimony or physical
evidence admitted for the jury’s consideration, the nature of the evidence supporting
the verdict, and the character of the alleged error and how it might be considered in
connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex.
Crim. App. 2002).
Because there is significant overlap between the analysis of the Mosley factors
and the harm analysis under Rule 44.2(b), I will not belabor the point by repeating
what I said above. It suffices to say that there is substantial evidence tending to prove
that Hallman sexually assaulted Amy. Most notably, there is testimony from Amy
herself, who was eighteen at the time of trial, and who testified at length about being
sexually assaulted by Hallman on numerous occasions and gave detailed, sensory
accounts of those assaults.
22
If the complained-of evidence had been timely produced, it would have had
nothing more than a “slight effect” on the jury. See Solomon, 49 S.W.3d at 365; Johnson,
967 S.W.2d at 417. In this regard, much of the information contained in the
complained-of evidence was also contained in the offense report. See Wyatt,
23 S.W.3d at 27. Moreover, Hallman had other means to attack Kim’s credibility
outside of the complained-of evidence, including through Detective Robles’s
testimony and through the information contained in the offense report.9 Finally, to
the extent that there is any value to the complained-of evidence, that value would be
only slight. The complained-of evidence could have been used to do nothing more
than attack Kim’s credibility as to her testimony about what occurred during the
August 10, 2014 incident; but that testimony does virtually nothing to assail the
evidence relating to Hallman’s sexual assault of Amy, particularly in light of Amy’s
detailed testimony relating to Hallman’s abuse.
In sum, I do not believe that the untimely disclosure of the complained-of
evidence affected Hallman’s substantial rights. See Tex. R. App. P. 44.2(b). As such,
to the extent that Rule 44.2(b) is appropriate to address Hallman’s argument on
appeal, I would hold that Hallman’s substantial rights were not affected, and I would
overrule Hallman’s sole point of error. See id.
9
Moreover, Hallman and his counsel should have been aware of Hallman’s
handwritten statement and the family-violence packet because both were referenced
in the offense report.
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V. CONCLUSION
Because I would hold that the trial court did not abuse its discretion by denying
Hallman’s motion for mistrial and that Hallman’s substantial rights were not affected,
I would affirm the trial court’s judgment. Because the majority holds otherwise, I
respectfully dissent.
/s/ Dana Womack
Dana Womack
Justice
Publish
Delivered: June 16, 2022
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