Felix Sandoval v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-11-00416-CR

Felix Sandoval, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF HAYS COUNTY, 428TH JUDICIAL DISTRICT

NO. CR-11-0225, THE HONORABLE WILLIAM HENRY, JUDGE PRESIDING

OPINION

A jury convicted appellant Felix Sandoval of the offense of sexual assault of a child,

see Tex. Penal Code § 22.011(a)(2)(A), and assessed his punishment, enhanced by a prior felony

conviction, at confinement for 80 years in the Institutional Division of the Texas Department of

Criminal Justice. See id. §§ 22.011(f) (categorizing offense as second degree felony), 12.42(b)

(providing that at trial of second degree felony offense, defendant shall be punished for first degree

felony upon proof of previous felony conviction), 12.32 (punishment range for first degree felony

is imprisonment for life or any term not more than 99 years or less than 5 years). In nine points of

error on appeal, appellant complains about the removal of a juror during deliberations, the admission

of hearsay evidence, the admission of improper opinion testimony, and the admission of

character-conformity evidence. For the following reasons, we reverse appellant’s conviction and

remand the cause to the trial court for a new trial.

BACKGROUND

The record reflects that on July 14, 2010, the victim, C.E., turned 15 years old.1

Appellant was married to C.E.’s aunt, and occasionally C.E. spent the night in their home to visit

their daughter, C.E.’s younger cousin. In November 2010, C.E. disclosed to another cousin, B.E.,

that on one overnight visit earlier that year appellant forced her to have sexual intercourse with him.

The cousin got her father, C.E.’s uncle, and had C.E. repeat the information to him. He, in turn, got

C.E.’s mother and had C.E. tell her mother. C.E.’s mother, Rosie, reported the incident to police the

following day.2

Daniel Preston, a patrol officer with the City of Kyle Police Department, responded

to a dispatch call concerning C.E.’s complaint of sexual assault. He met with C.E. and her mother

at the police station, where he interviewed them and took written statements from both of them.

During the officer’s testimony at trial, the written statements of both C.E. and Rosie were admitted

for the limited purpose of showing what information the officer acted on. In order to “minimize any

perceived prejudice to the defendant,” the trial court ordered that the statements not be published to

the jury until C.E. and her mother testified.

Officer Preston testified that C.E. and her mother both told him that appellant had

sexually assaulted C.E. the preceding summer when C.E. spent the night at his house to visit her

younger cousin. In his testimony, the officer repeated the details of C.E.’s account of the alleged

1

In order to protect the identity of the minor children involved in this case, we use only the

initials of the victim and other children and only the first names of adult family members.

2

There is some confusion in the record about the spelling of Rosie’s full first name.

However, the record reflects that she goes by “Rosie,” which is how we will refer to her in

this opinion.

2

sexual assault. According to the information he received, C.E. spent the night at her aunt’s house

one night between mid-July and mid-August 2010. The next morning, her aunt and cousin left to

go to the store, but C.E. remained behind to sleep some more. After her cousin left, C.E. locked the

bedroom door and returned to bed. She then heard appellant repeatedly knocking on the door

seeking entrance. C.E. refused to open the door, telling him to go away. She got up out of bed and

went to sit on a couch by the window to await her aunt’s return. However, appellant somehow

unlocked the door and entered the bedroom. According to C.E.’s report to the officer, appellant then

came toward her and began hugging her and kissing her on the mouth. C.E. told the officer that she

moved her head from side to side to avoid the kisses and told him to stop. She said that appellant

then threw her on to the bed and when she attempted to get up he pushed her back down on the bed.

They struggled over her sweat pants—when appellant repeatedly attempted to remove them she kept

pulling them back up—until he managed to remove them completely after he grabbed her hands.

She reported that when he held her hands, it caused her pain. C.E. told Officer Preston that appellant

inserted his penis into her vagina as she continued to struggle and fight. She said that appellant had

intercourse with her for approximately five minutes and then stopped. He told her not to tell anyone

about what had happened and then took his clothes and went into the bathroom. When her aunt and

cousin returned, C.E. pretended nothing had happened. She did not say anything until November 14

of that year, when she revealed the assault to her 15-year-old cousin. In his testimony, the officer

confirmed that what C.E. told him was “in line” with what her mother told him had happened.

The officer also testified that during his interview of C.E., she gave a description of

a tattoo on appellant’s upper arm. During questioning on redirect examination, the State showed

Officer Preston a photograph of a tattoo on appellant’s arm taken during his jail book-in, and the

3

officer opined that it matched the description C.E. gave him. In addition, Officer Preston described

the clothing that C.E. reported appellant had been wearing at the time of the assault—a white t-shirt

and camouflage shorts. The officer also said that C.E. indicated that she did not report the assault

sooner because she was scared. He further testified that C.E.’s written statement comported with

what she had told him in the interview and, further, that he “didn’t find any glaring discrepencies or

inconsistencies . . . that would raise red flags.” After taking the report, he forwarded the case to the

Criminal Investigation Division.

Pedro Carrasco, a detective with the Kyle Police Department, was assigned to

investigate the case. He set up a forensic interview of C.E. at the local child advocacy center. As

part of his investigation, he reviewed the video of the interview.3 He opined in his testimony at trial

that C.E.’s forensic interview was consistent with both the written and oral statements C.E. had

provided Officer Preston. He also explained that in her forensic interview C.E. described a tattoo

on appellant’s left arm. After being shown a photograph of appellant’s tattoo by the prosecutor, he

opined that it matched the description C.E. gave to the interviewer. Detective Carrasco also testified

that he had not observed anything in C.E.’s forensic interview that indicated to him that she had

fabricated the allegations.

The detective also testified that, as part of his investigation, he made contact with

appellant, who agreed to come in to the police station for a voluntary interview.4 During the

3

The record reflects that law enforcement officers are able to watch the forensic interviews

in a separate room at the advocacy center while they are being conducted. However, Detective

Carrasco was not present to observe C.E.’s interview live.

4

According to his testimony, the detective first made contact with appellant at his house.

Initially, appellant hid inside the house while his wife answered the door and told the detective he

was not at home. Feeling that appellant was inside, Detective Carrasco explained that appellant was

4

interview, appellant recalled the night that C.E. spent the night at his house that summer, and he

remembered that his wife had left the house for 10 to 15 minutes and then returned. Throughout the

interview, appellant repeatedly denied committing the offense and expressed that “[he was] not a

molester.” He indicated that he did not know C.E.’s motives for falsely accusing him, but offered

several possible reasons for the accusation, including the family’s dislike of him. At the end of the

interview, appellant offered to give a DNA sample and, after the detective’s request, indicated that

he would consider taking a polygraph test. However, the detective had no further communications

with appellant after the interview. The video recording of the interview was admitted into evidence,

in its entirety, and played for the jury during the detective’s testimony.5

not in trouble and that he just needed to talk to him. Appellant’s wife then went inside the residence,

and shortly thereafter appellant came to the door. The detective testified that he found appellant’s

reluctance to come to the door and his wife’s lying for him “significant.”

5

The video of the interview began with a discussion about appellant’s prior incarceration

for aggravated assault and his explanation about the circumstances of that offense. During the

interview, the detective mentioned “another incident . . . about [J.A.] [C.E.’s older sister]” that

implied inappropriate conduct, to which appellant made no response. The interview ended with a

discussion about taking a polygraph exam, during which appellant mentioned hiring a lawyer.

Defense counsel objected to the admission of these portions of the video and asked that the video

be redacted. The State opposed redaction.

The State first offered the video when defense counsel began to cross-examine the detective

about the interview. The prosecutor objected to questions about specifics of the interview and

offered the video in its entirety “under the Doctrine of Optional Completeness.” The objection was

overruled. A few questions later, the State again objected and again offered the video. The objection

was again overruled, but defense counsel pursued the State’s willingness to admit the video.

However, the prosecutor explained that her agreement to the admission of the video was conditioned

on its admission in its entirety, unredacted, stating, “The whole kit and caboodle. If it comes in, it

comes in as is.” When defense counsel objected to that, she expressed that “[h]e doesn’t get to pick

and choose.” At that time, the trial court took the arguments under advisement and made no ruling

concerning the redaction of the objected-to content. Later, when defense counsel continued to

question the detective about the specifics of the interview, the State again objected and again offered

the video under the doctrine of optional completeness. The objection was again overruled.

Subsequently, after the State’s redirect examination of the detective, a discussion about the

admissibility of extraneous offenses occurred outside the presence of the jury. The discussion

5

Also during his testimony, Detective Carrasco confirmed that he had received

information about an admission that appellant made to his wife that “seemed to corroborate that

[appellant] had had intercourse with C.E.” His subsequent testimony revealed that this corroborating

information came from appellant’s in-laws. Allegedly, appellant admitted having had sex with his

niece to his wife, who then told her mother, who then told C.E.’s mother, Rosie, who then told

Detective Carrasco.6 In concluding his direct testimony, the detective detailed the considerations that

led to his opinion that appellant had committed the sexual assault.

After the law enforcement officials testified, C.E.’s family members testified about

her disclosure of the sexual assault. C.E. disclosed the sexual assault first to her 15-year-old cousin,

B.E., at a family gathering. B.E. then told her father, Jesse, and had C.E. tell him what had

happened. Jesse then notified his sister, C.E.’s mother, and was with them when C.E. told her

mother about the assault. During his testimony at trial, Jesse described C.E.’s demeanor when she

told him about the assault and when she recounted the details of the sexual assault to her mother.

In her testimony, B.E. recounted the details of the sexual assault as C.E. had described it to her. She

centered on the admission of appellant’s alleged extraneous conduct with C.E.’s older sister when

she was younger and did not clearly refer to the video or the issue of redaction. However, after the

court made its ruling as to what extraneous-offense evidence would be admitted, defense counsel

indicated that because the trial court had “ruled against [them],” the defense wanted the video of the

interview admitted. He agreed to the admission of the video in its entirety “subject to [his]

objections.” When the State moved to publish the video to the jury, further discussions at the bench

again established that defense counsel wanted the video shown subject to the previous objections,

which the court clarified for the State as being “404(b) objections.”

6

The record reflects that Detective Carrasco called appellant’s wife to ask about the alleged

admission. In the phone call, which was recorded by the detective, appellant’s wife said that she told

her mom that her niece locked the door because that is what appellant told her. However, she

repeatedly told the detective that her husband denied the allegations and told her over and over that

“he didn’t do it.”

6

also described C.E.’s demeanor when she told about the assault, indicating that C.E. was upset. The

State offered C.E.’s hearsay statements to her cousin as an “excited utterance,” and the trial court

admitted them as such.

C.E.’s mother, Rosie, also testified at trial. While she did not provide the details of

the sexual assault that her daughter had shared with her, she testified that C.E. identified appellant

as the one who sexually assaulted her. She described C.E. as “emotional” when she told her about

the assault. Rosie’s written statement to Officer Preston, detailing her daughter’s account of the

sexual assault to her, was admitted “for all purposes” during her testimony. Much of Rosie’s

testimony rebutted the assertions appellant made in his interview with the detective. For example,

she denied that C.E.’s biological father might have sexually molested her daughter and denied

knowing any reason why her daughter might have fabricated these allegations against appellant.

Rosie also testified that she had learned earlier from her oldest daughter, J.A., that appellant was

sexually interested in children.

Rosie’s daughter, J.A., was 20 years old at the time of trial. She testified that

appellant had a reputation among the children in the family for being a “pervert” and that she had

warned the younger girls in the family, including C.E., to avoid him. She expressed her opinion that

appellant was a sexual predator because of something he tried with her—several instances that had

made her “feel uncomfortable.” She alluded to three instances of conduct, recounting the details of

the last incident, which occurred when she was nine or ten years old. She described an occasion in

which she and appellant were in his bedroom, she was standing between his legs as he sat on the bed,

and he grabbed her by her butt and pulled her toward him with a “creepy” smile on his face.

7

Melissa Rodriguez, the program director at the local child advocacy center, conducted

the forensic interview of C.E. She testified about the process of forensically interviewing children

and the expected behaviors of children when being interviewed. She also discussed factors that

forensic interviewers consider when determining whether abuse allegations may be fabricated. She

did not recount the details that C.E. shared with her about the sexual assault. She did, however,

testify that nothing in the interview contradicted the report of sexual assault that she had received

from law enforcement prior to the interview. She also indicated that she had prior experience with

children who had fabricated allegations of sexual abuse and testified that she did not have any

concerns that C.E. had fabricated these allegations, reported no such concerns to law enforcement,

and saw “no red flags at all.”

Finally, C.E. testified about the sexual assault appellant perpetrated against her that

summer. She testified that although she was suspicious of her uncle, having been warned about him

by her sister, J.A., she nonetheless had overnight visits at her aunt’s house on several occasions to

visit her younger cousin. She testified that during that summer, in late July or early August, she

spent the night in her cousin’s bedroom.7 She said the next morning she stayed at the house while

her cousin and aunt went to the store because she wanted to sleep some more. After they left, she

locked the bedroom door and got back into bed. Immediately, she heard her uncle knocking on the

door telling her to open the door. She refused and told him to go away. She then heard something

at the door, got scared, and went to sit on the couch by the window to check for her aunt. C.E.

testified that as she sat on the couch, she heard her uncle picking the lock. She said she did not know

how, but her uncle gained entry into the room. He moved toward her and sat next to her on the

7

C.E. recalled that the incident had occurred after her birthday but before school started.

8

couch. When he sat down, she stood up. He then stood up as well, grabbed her, and starting kissing

her on the mouth. She said she tried to avoid his kisses, moving her head and trying to back away,

but he was too strong. She testified that they struggled, and eventually he pushed her onto the bed.

She said appellant then got on top of her and starting kissing her again. He removed her pants, and,

after some effort, put his penis into her vagina. She estimated the incident lasted for less than five

minutes, after which appellant stopped, got up, and left, telling her to say nothing. C.E. then got

dressed and returned to the couch to wait for her aunt to come home. She testified that she did not

tell anyone in her family because she did not know what they would think. She was close to her

cousin, B.E., however, and eventually told her about the incident because keeping it a secret “was

killing [her] inside.” During C.E.’s testimony, the State reoffered her written statement, which the

court admitted without limitation. In providing the details of the sexual assault, C.E.’s testimony

essentially repeated the accounts provided in Officer Preston’s testimony, her cousin’s testimony,

her mother’s written statement, and her own written statement.

The State rested after C.E.’s testimony. Appellant rested without calling witnesses.

After the jury began deliberating, the trial court discharged a juror and replaced him with the

alternate, after which the jury convicted appellant of the offense as charged. Appellant elected for

the jury to assess punishment. He pled true to an enhancement allegation of a prior felony

aggravated-assault conviction. The State did not call any witnesses during the punishment phase but

offered into evidence a penitentiary packet reflecting the prior felony aggravated-assault conviction

and a judgment reflecting a prior misdemeanor assault conviction. The jury assessed appellant’s

punishment at 80 years’ imprisonment. This appeal followed.

9

DISCUSSION

Appellant raises nine points of error on appeal. The first point of error complains

about the removal of a juror during deliberations on guilt. The remainder of appellant’s points of

error raise evidentiary complaints about the trial court’s admission of inadmissible hearsay

statements, improper opinion testimony, and inadmissible character-conformity evidence.

I.

Removal of Juror

In his first point of error, appellant contends the trial court erred by excusing a juror,

over his objection, after deliberations on guilt-innocence had begun and replacing him with the

alternate juror.

Following voir dire on Monday, the jury and one alternate juror were sworn. Trial

began the following morning. The guilt-innocence phase concluded three days later, and the jury

was sent out to deliberate Thursday afternoon. At that time, the alternate juror was conditionally

released with the court’s admonition that he was still bound by the instructions of the court but was

free to leave the courthouse, subject to recall if his services became necessary. Sometime after

deliberations started—the record does not make clear when—the court apparently received

information that one of the jurors, Mr. Brooks, had communicated with the court’s bailiff about the

case. The judge brought Juror Brooks into the courtroom to inquire about the nature of any

communications he might have had. During the inquiry, Brooks confirmed that he had

communicated with the bailiff, someone he knew from church, and had expressed to her his feelings

about sitting as a juror in the case and rendering a verdict.

10

In response to the court’s questions, Brooks indicated that “[he wasn’t] sure” if he

could follow the instructions of the court because he “would much rather be minding [his] own

business at home.” When the judge asked if he could sit in judgment of another person, he

answered, “No. At this moment, no.” When the court sought clarification, Brooks expressed

uncertainty, stating, “I don’t feel that I know enough to really make a sound judgment in this case.”

When his answers suggested that his uncertainty resulted from “going through a lot in [his own] life”

at the time, the court questioned him about mental-health issues. Brooks denied any psychological

problems, saying, “Well, I don’t consider them psychological problems, I think some of them might

be very sound, rational arguments.” When the judge directly asked whether “situations going on in

[his] life [were] creating some stress” for him, Brooks responded, “Not really.” Ultimately, Juror

Brooks explained,

. . . The reason why I don’t want to issue a verdict, particularly a not guilty

[sic] verdict, is because I feel that based on the evidence that’s been presented to us,

the jury, I don’t feel that there’s enough to make me know that the guy did it. I mean,

whether he did it or not, I could be about 50/50 about that, you know.

....

So if it’s an issue of everything based on what she says, I don’t feel that that’s

enough to make me feel comfortable issuing a guilty verdict just because everybody

else wants to.

The court confirmed with Brooks that this concern about rendering a guilty verdict was what he

shared with the bailiff in his conversation with her.8

8

The record reflects that throughout the questioning, Juror Brooks was uncomfortable at

having to explain his feelings in open court. In his answers to the court, he expressed that he “sure

wish[ed] [he] could talk to somebody in private about it,” did not understand why he “would have

to say it in front of [others],” and “wish[ed] [he] could tell [the judge] in private” because he “[knew]

11

After Juror Brooks left the courtroom, the State asked the judge to remove him from

the jury and replace him with the alternate juror pursuant to article 33.011 of the Texas Code of

Criminal Procedure. The prosecutor took the position that “Mr. Brooks has some, at the very least,

probably significant external problems going on that may cause him to be under some emotional

duress that render him unable to continue deliberating.” She further argued that he violated the rules

of the court by discussing “this case and his feelings and his comments on deliberation with a person

not of his jury.” Defense counsel responded that “it’s not that [Brooks] can’t follow the orders of

the Court, it’s that he doesn’t agree with the rest of the jury, and he can’t go along with them.” He

pointed out that the jury had not been deliberating long and that Brooks had indicated that he could

not “agree at this time.” He maintained that Juror Brooks was not disabled under the statute and that

replacing him was not necessary or authorized.

Before making a ruling, the trial judge questioned his bailiff. She concurred “with

what Mr. Brooks said with regard to his conversation with [her]” but indicated that he was more

detailed about his feelings when answering the judge’s questions. She confirmed that she knew

Brooks from church as well as through other people in the community. The trial court asked her if

she “ha[d] any understanding, one way or the other, of whether or not he would be of sound mind.”

In response, the bailiff opined that “he is painfully shy” and that she thought they would have a “hard

time” getting him back in the jury room to continue deliberations because he was “strong-willed

enough that he would not go in there.”

people in this town.” He indicated that part of the reason he shared his feelings about serving as a

juror with the bailiff was because he was alone with her in the hallway.

12

At that point, the court found that Juror Brooks was “disqualified because, among

other things, his communication to someone not of his jury about the details of the case.” He further

found that the communication was “not initiated or encouraged” by the bailiff. He granted the

State’s request to have the alternate juror replace Juror Brooks. Defense counsel renewed his

objection by moving for a mistrial, which the court denied. The judge then determined, for record

purposes, the length of the bailiff’s conversation with Juror Brooks. The bailiff indicated it was

“[l]ess than a minute,” explaining, “As soon as he began discussing anything that related to evidence,

I put my hand on his shoulder and I said, ‘I need you to stop right there.’” Defense counsel further

objected to the court’s finding that Juror Brooks was disqualified.

Standard of Review

The trial court has discretion to determine whether a juror has become disabled and

to seat an alternate juror. Scales v. State, 380 S.W.3d 780, 783 (Tex. Crim. App. 2012); see Routier

v. State, 112 S.W.3d 554, 588 (Tex. Crim. App. 2003). The trial judge is the sole fact-finder and

judge of the credibility of the testifying juror, but the court’s decision to replace a juror with an

alternate is subject to review for an abuse of discretion. Scales, 380 S.W.3d at 784. In order to

support its decision, the trial court must make a finding, sufficiently supported by the record, that

the juror was disqualified or unable to perform the duties of a juror. Id.; see Tex. Code Crim. Proc.

art. 33.011(b). It is not the role of an appellate court to substitute its own judgment for that of the

trial court, but rather to assess whether, after viewing the evidence in the light most favorable to the

trial court’s ruling, the ruling was arbitrary or unreasonable. Scales, 380 S.W.3d at 784. The ruling

must be upheld if it is within the “zone of reasonable disagreement.” Id. Absent such an abuse of

discretion, no reversible error will be found. Id.; see Routier, 112 S.W.3d at 588.

13

Juror Communication

The trial court based its finding that Juror Brooks was disqualified, and its subsequent

decision to remove him, primarily on Brooks’s communication with the bailiff.

A juror must make decisions at the guilt and punishment phases using information

obtained in the courtroom: the law, the evidence, and the trial court’s mandates. Granados v. State,

85 S.W.3d 217, 235 (Tex. Crim. App. 2002); see also McQuarrie v. State, 380 S.W.3d 145, 152

(Tex. Crim. App. 2012). Accordingly, article 36.22 of the Texas Code of Criminal Procedure

prohibits conversing with the jury: “No person shall be permitted to converse with a juror about the

case on trial except in the presence and by the permission of the court.” Tex. Code Crim. Proc.

art. 36.22; see also Tex. R. App. P. 21.3(f) (providing that defendant must be granted new trial when

juror has talked with anyone about case). The main purpose of this statutory prohibition

“is to prevent an outsider from saying anything that might influence a juror.” Ocon v. State,

284 S.W.3d 880, 887 (Tex. Crim. App. 2009) (quoting Chambliss v. State, 647 S.W.2d 257, 266

(Tex. Crim. App. 1983) (emphasis in original)). The paramount issue is whether appellant received

a fair and impartial trial; therefore, the analysis must focus on whether the juror was biased as a

result of the improper conversation, not whether the juror biased an outsider. Id. If a violation is

shown, the effectiveness of possible remedies will be determined in part by whether the conversation

influenced the juror. Id. at 884.

A violation of article 36.22 triggers a rebuttable presumption of injury to the accused.

Id.; Klapesky v. State, 256 S.W.3d 442, 452 (Tex. App.—Austin 2008, pet. ref’d). To invoke this

presumption, a complaining party must show a communication between a juror and an unauthorized

14

person that involved matters concerning the case on trial.9 See Chambliss, 647 S.W.2d at 265–66;

Klapesky, 256 S.W.3d at 452. If it is shown that the case was not discussed or that

nothing prejudicial to the accused was said, then appellant has not been injured. Green v. State,

840 S.W.2d 394, 406 (Tex. Crim. App. 1992), disavowed on other grounds by Trevino v. State,

991 S.W.2d 849, 853 (Tex. Crim. App. 1999). Such a showing may rebut the presumption of harm.

Id. Reviewing courts should consider the evidence rebutting the presumption of harm regardless of

whether it was presented by the State or by the accused. Bokemeyer v. State, 355 S.W.3d 199, 203

(Tex. App.—Houston [1st Dist.] 2011, no pet.); Alexander v. State, 919 S.W.2d 756, 767 (Tex.

App.—Texarkana 1996, no pet.).

We hold that the record in this case does not establish an article 36.22 violation.

“[T]he language of Article 36.22 establishes two speakers, with attention directed toward the

outsider’s . . . speaking.” Ocon, 284 S.W.3d at 885 n.4; see Benefield v. State, 389 S.W.3d 564, 570

(Tex. App.—Houston [14th Dist.] 2012, pet. ref’d); see also Patterson v. State, 293 S.W. 570, 571

(Tex. Crim. App. 1927) (op. on reh’g) (no violation of predecessor statute when juror made comment

to third party and third party “made no reply to what the juror said”; court held that this was “not

‘conversing with a juror,’” and thus there was no presumption of injury). Here, nothing in the record

suggests that the bailiff communicated anything about the case to Juror Brooks outside the presence

of, or without permission from, the court. The uncontroverted evidence established that the bailiff

9

We note that generally there is no presumption of injury when the bailiff associates with

the jury. See Alexander v. State, 919 S.W.2d 756, 766 (Tex. App.—Texarkana 1996, no pet.). In

fact, Texas procedural law requires the county sheriff to provide a bailiff to the court to attend to the

wants and needs of the jurors. See Tex. Code Crim. Proc. art. 36.24 (entitled “Officer Shall Attend

Jury”). In this case, the trial judge instructed the jurors that the bailiffs of the court would be the

“point of contact.” Thus, the issue here is more correctly described as an unauthorized

communication rather than a communication with an unauthorized person.

15

did not discuss the case with Juror Brooks, nor did she say anything even arguably prejudicial to

appellant during her conversation with the juror. Thus, any presumption of injury was rebutted by

this evidence. Further, there is no indication that Juror Brooks emerged from his conversation with

the bailiff with any new information about the case that created a bias for or against either side. See

Ocon, 284 S.W.3d at 887. Rather, Juror Brooks merely disclosed his feelings about serving as a

juror due to his concerns about the evidence, i.e., he expressed his doubts. This disclosure, while

perhaps improper, was not a conversation contemplated by article 36.22. Because the conversation

did not constitute an unauthorized communication with a juror, it was not grounds for the

disqualification of Juror Brooks. Further, we find the remedy the trial court utilized to address Juror

Brooks’s improper conduct—his removal from the jury—too extreme given the fact that the record

does not reflect any bias or prejudice to either party as a result of the conversation.

Inability to Perform Duties

The trial court determined that Juror Brooks was disqualified because of his

unauthorized communication with the bailiff “among other things.” The court did not explain what

those “other” disqualifying things were. However, based on the State’s request and argument urging

the replacement of Juror Brooks with the alternate juror, we presume that one of those “other things”

was the court’s conclusion that Juror Brooks was unable or disqualified to perform his duties under

article 33.011(b).

Article 33.011(b) of the Texas Code of Criminal Procedure states that, before a jury

renders a verdict regarding a defendant’s guilt or innocence, or assesses a punishment when

applicable, alternate jurors “shall replace jurors who . . . become or are found to be unable or

disqualified to perform their duties[.]” Tex. Code Crim. Proc. art. 33.011(b). Thus, when a regular

16

juror becomes unable or disqualified to perform his duties, Texas law requires that the juror be

replaced with the alternate juror. Id.; Scales, 380 S.W.3d at 783; Romero v. State, 396 S.W.3d 136,

148 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). The statute does not define “unable to

perform,” but appellate courts have concluded that “unable” as used in article 33.011 is

indistinguishable from “disabled” as used in article 36.29. See Scales, 380 S.W.3d at 783; Sneed

v. State, 209 S.W.3d 782, 786–87 (Tex. App.—Texarkana 2006, pet. ref’d). The court of criminal

appeals has interpreted “disability” under article 36.29 to require that a disabled juror suffer from

“a physical illness, mental condition, or emotional state that would hinder or inhibit the juror from

performing his or her duties as a juror,” or that the juror was suffering from a condition that inhibited

him from “fully and fairly performing the functions of a juror.” Scales, 380 S.W.3d at 783 (internal

quotation marks omitted); see Routier, 112 S.W.3d at 588. To support its decision that a juror is

disabled, the trial court must make a finding, sufficiently supported by the record, that the juror was

disqualified or unable to perform the duties of a juror. Scales, 380 S.W.3d at 783. The trial court

may not dismiss a juror for reasons related to that juror’s evaluation of the sufficiency of the

evidence. Id. at 783–84 (citing United States v. Edwards, 303 F.3d 606, 633 (5th Cir. 2002)).

The record in this case does not support a finding that Brooks was unable to perform

his duties as a juror, only that he was disinclined to do so. Nothing in the record indicates that his

feelings hindered him from “fully and fairly performing [his] functions as a juror,” he simply had

an aversion to doing so because he had doubts about the sufficiency of the evidence. Although his

testimony demonstrates that he was troubled by his doubts and frustrated at potentially being the

hold-out juror, at no time did Brooks indicate that he would not, or could not, deliberate further.

Nothing demonstrates that he was emotionally distraught or unable to deliberate, as the State

17

suggests. He only expressed that he was disinclined to return a guilty verdict because he found the

evidence lacking. Overall, his testimony simply expressed his doubt concerning appellant’s guilt.

His aversion to performing his duties as a juror stemmed from his discomfort of having a

“reasonable doubt” when others on the jury, apparently, did not. However, the trial court was not

permitted to dismiss Juror Brooks for reasons related to his evaluation of the sufficiency of the

evidence. See id.

Under these circumstances, we conclude the trial court abused its discretion in finding

Juror Brooks disqualified, removing him from service, and replacing him with the alternate juror.

Harm Analysis

We must now address whether the erroneous removal of Juror Brooks from the

jury was harmful to appellant. For purposes of this opinion, we will assume, without deciding,

that the trial court’s erroneous removal of Juror Brooks constituted statutory error and must

therefore be analyzed under Texas Rule of Appellate Procedure 44.2(b).10 See id. at 786; Tex. R.

App. P. 44.2 (b). Under Rule 44.2(b), “[a]ny other error, defect, irregularity, or variance that does

not affect substantial rights must be disregarded.” Tex. R. App. P. 44.2(b). A substantial right is

affected when the error had a substantial and injurious effect or influence in determining the jury’s

10

Appellant did not complain at trial, as he does on appeal, that the removal of Juror Brooks

violated his right to due process. The discussions and argument concerning Brooks’s

disqualification or disability only referenced article 33.011. Thus, his complaint that the removal

violated his constitutional right to due process was not preserved for appellate review. See Tex. R.

App. P. 33.1(a) (to preserve complaint for appellate review, party must have presented specific and

timely request, motion, or objection to trial court and, further, must have obtained adverse

ruling); see also Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011); Peavey v. State,

248 S.W.3d 455, 470 (Tex. App.—Austin 2008, pet. ref’d).

18

verdict. Scales, 380 S.W.3d at 786 (citing King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.

1997)); Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010).

The testimony of Juror Brooks indicated that the other members of the jury were

seemingly in favor of conviction, whereas he was not due to his concerns about the sufficiency of

the evidence proving guilt. If the jury had been allowed to continue deliberating, his uncertainty or

reasonable doubt may have been resolved by further deliberations. This would have produced a

verdict. Or, he may have maintained his views of the evidence and his reasonable doubt, resulting

in a deadlocked jury. This would have resulted in a mistrial. See Tex. Code Crim. Proc. art. 36.31

(procedure for when jury cannot agree). Because of the error, neither possibility was allowed to

occur. See Scales, 380 S.W.3d at 786–87. Given the record before us, which demonstrates that Juror

Brooks considered the evidence insufficient to prove appellant’s guilt beyond a reasonable doubt and

therefore felt uncomfortable rendering a guilty verdict, it appears a mistrial was the more probable

of the possible outcomes. After he was replaced, the jury returned a guilty verdict, sufficiently

demonstrating that the erroneous removal had “a substantial and injurious influence in determining

the jury’s verdict.” See id. Thus, the error of removing Juror Brooks affected a substantial right of

appellant’s. We sustain appellant’s first point of error.

II.

Hearsay Evidence

In four points of error, appellant complains about the admission of hearsay evidence.

In his second point of error, he asserts that the trial court erred in allowing Officer Preston to testify

19

about the substance of C.E.’s written statement detailing the sexual assault.11 In his third point of

error, appellant maintains that the trial court erred in admitting the written statements that C.E. and

her mother provided to Officer Preston when reporting the assault. In his sixth point of error,

appellant argues that the trial court erred in overruling his hearsay objection to an out-of-court

statement concerning appellant’s alleged admission of guilt to his wife. In his seventh point of error,

appellant contends the trial court erred when it admitted, as an excited utterance, C.E.’s hearsay

statements to her cousin describing the sexual assault.

The State argues that Officer Preston’s testimony detailing C.E.’s account of the

incident, the written statements of C.E. and her mother, and Detective Carrasco’s testimony

concerning appellant’s alleged admission of guilt to his wife were not objectionable hearsay because

the State did not offer them for the truth of the matters asserted but rather “to explain why the

witness undertook the investigative action that he undertook.” The State further maintains that

C.E.’s statements disclosing the assault to B.E. constitute an excited utterance.

Standard of Review

We review a trial court’s ruling on the admission or exclusion of evidence for an

abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). A trial court

abuses its discretion only if its decision “lies outside the zone of reasonable disagreement.” Martinez

v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Montgomery v. State, 810 S.W.2d 372, 391

(Tex. Crim. App. 1990) (op. on reh’g). We consider the ruling in light of what was before the trial

11

It is clear from the officer’s testimony that he received details of the assault from C.E. in

both oral and written form, first from his interview of her and then afterwards when she produced

a written statement. We construe this point of error as complaining about the officer’s repetition of

the details of the sexual assault provided by C.E., whether orally or in written form.

20

court at the time the ruling was made and uphold the trial court’s decision if it lies within the zone

of reasonable disagreement. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009).

Hearsay

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

that is offered to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay is

inadmissible except as provided by statute or the rules of evidence. Tex. R. Evid. 802. A statement

not offered to prove the truth of the matter asserted is not hearsay. Dinkins v. State, 894 S.W.2d 330,

347 (Tex. Crim. App. 1995).

Information Acted On

The State may offer out-of-court statements in evidence without violating the hearsay

rule to explain why the defendant became the subject of the investigation. See Dinkins, 894 S.W.2d

at 347. “An arresting officer should not be put in the false position of seeming just to have happened

upon the scene, he should be allowed some explanation of his presence and conduct.” Schaffer

v. State, 777 S.W.2d 111, 114–15 (Tex. Crim. App. 1989). Therefore,“testimony by an officer that

he went to a certain place or performed a certain act in response to generalized ‘information

received’ is normally not considered hearsay because the witness should be allowed to give some

explanation of his behavior.” Poindexter v. State, 153 S.W.3d 402, 408 (Tex. Crim. App. 2005).

“But details of the information received are considered hearsay.” Id. The officer “should not be

permitted to relate historical aspects of the case, replete with hearsay statements in the form of

complaints and reports, on the ground that [he] was entitled to tell the jury the information upon

which [he] acted.” Schaffer, 777 S.W.2d at 114–15. “The appropriate inquiry focuses on whether

21

the ‘information received’ testimony is a general description of possible criminality or a specific

description of the defendant’s purported involvement or link to that activity.” Head v. State,

4 S.W.3d 258, 261 (Tex. Crim. App. 1999).

Initially, we note that Officer Preston was a patrol officer, not an investigator. In fact,

in offering his testimony, the State emphasized that his duties in this case did not

include investigatory responsibilities. During direct examination, the prosecutor initiated the

following exchange:

Q. Now, when you’re on patrol -- I mean, your duties are very different than a

detective, aren’t they?

A. Yes, ma’am.

Q. What’s the difference, I guess? Or what do you understand that your role is

when you’re on patrol versus, say, if you were, like, a detective in the case?

A. My role as patrol is to be in the city as a deterrent to crime and to just patrol

around and be of service.

Q. Okay. When you take a report, are you the -- I guess, do you get the initial

facts?

A. Yes, ma’am.

Q. Okay. Do you continue on to do any kind of in-depth investigation like a

detective would do?

A. Not in all cases, no.

Q. Okay. In these types of cases, do you generally -- does the patrol officer, is

he the one who continues on the investigation if you have a report of sexual

assault?

A. No, ma’am.

Q. Okay. Now, in this case, can you tell the jury exactly what you did once you

got to the police department?

22

A. I arrived at the police department, I met with Rosie, spoke with her as to how

I can help her. She stated her daughter had been sexually assaulted.

At this point, defense counsel objected on hearsay grounds. The trial court sustained the objection.

The prosecutor then averred, “I’m not offering it for the truth of the matter asserted, Your Honor,

I’m just offering it to show what information he acted upon.” The trial court then impliedly

overruled the hearsay objection by giving a limiting instruction to the jury before allowing the

prosecutor to continue questioning.12 The prosecutor then continued questioning the officer about

his limited role in the case:

Q. And just to clarify, Officer Preston, when you’re taking a report from people,

you’re just taking down what they’re telling you, you’re not going out and

verifying the truth of it or not; is that right?

A. Yes, ma’am.

Q. Okay. So we’re going to talk about what you were told as far as just the

information that you were taking down. But you, yourself, didn’t

independently verify the truth of it or nontruth of it.

A. No, ma’am.

Later, when appellant objected to the State’s offer of the written statements of C.E.

and her mother on hearsay grounds, the prosecutor responded:

12

The trial court instructed the jury:

As to that statement as to what the third person said, the jury may choose to consider

it or not consider it. If the jury chooses to consider it, they only may consider it for

information that the officer acted on and not for the truth of what was asserted in that

statement.

23

Judge, I’m not going to waste the Court’s time by restating everything that

I’ve said with regard to that it’s not offered for the truth of the matter asserted. This

officer is entitled to talk about what he acted on, what he did, what he obtained, and

that’s not hearsay. It’s not a hearsay exception, it’s not hearsay in any form.

The jury has been admonished now, I think by my count, at least three times

that this is not being offered because -- to show that it’s true, it’s being offered to

show what this police officer acted upon, the information that he took and what he

did afterwards.

Subsequently, on redirect examination, the prosecutor again questioned Officer Preston about his

limited duties:

Q. [Defense counsel] asked you if you did a whole bunch of different things.

But we talked about as a patrol officer, those things that he just asked you

about, that’s not your job to do those things, is it?

A. Not in reference to this case or these types of cases, no.

Q. Okay. So when he’s asking you all these things that you didn’t do this, you

didn’t do that, those were all things that you weren’t supposed to be doing,

right?

A. Yes, ma’am.

It is difficult to discern how C.E.’s hearsay statements to the officer about the sexual assault or either

of the written statements provided to the officer were “information acted upon,” as the State

contends, when the record explicitly reflects that the officer did not have the duty or responsibility

to act on such information, nor did he do so.

Nevertheless, even assuming Officer Preston had “acted upon” the information

received during his interview of C.E. or contained in the written statements he obtained, his

testimony at trial provided a complete account of C.E.’s description of the sexual assault, revealing

the specific details he received from C.E. The officer’s testimony is replete with “[C.E.] said . . .”

24

preceding particular facts given by C.E. His testimony was not merely a generalized description of

possible criminality that explained how appellant came to be a suspect but contained specific details

about the sexual assault, all of which he obtained from his interviews of C.E. and her mother and

their written statements. Thus, he “provided far greater detail than was reasonably necessary to

explain why” he decided to forward the case to the Criminal Investigation Division for investigation

(the only action he took after receiving the information). See Langham v. State, 305 S.W.3d 568,

580 (Tex. Crim. App. 2010) (detective’s representation of confidential informant’s statements

provided far greater detail than was reasonably necessary to explain why police decided to

investigate appellant’s residence). In the same way, C.E.’s written statement and her mother’s

written statement provided specific details of the incident. They too provided more than a general

description of possible criminal activity but instead gave a detailed description of appellant’s

involvement in such criminal activity (his perpetration of the sexual assault). Officer Preston’s

testimony and the written statements were inadmissible hearsay.

All of this hearsay evidence—Officer Preston’s testimony about C.E.’s statements,

C.E.’s written statement, and Rosie’s written statement—was not offered to explain how appellant

became the focus of a police investigation. The hearsay evidence went far beyond the permissible

general description of information received about possible criminality and instead provided specific

details and descriptions of appellant’s involvement in the sexual assault. Consequently, this

evidence was inadmissible, and the trial court erred in overruling appellant’s hearsay objections and

admitting the evidence.

25

Excited Utterance

Excited utterances are an exception to the hearsay rule. An excited utterance is a

“statement relating to a startling event or condition made while the declarant was under the

stress of excitement caused by the event or condition.” Tex. R. Evid. 803(2); Salazar v. State,

38 S.W.3d 141, 154 (Tex. Crim. App. 2001). The exception is based on the assumption that the

declarant is not, at the time of the statement, capable of the kind of reflection that would enable him

to fabricate information. Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005); see

Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (“The basis for the excited utterance

exception is a psychological one, namely, the fact that when a man is in the instant grip of violent

emotion, excitement or pain, he ordinarily loses the capacity for reflection necessary to the

fabrication of a falsehood and the ‘truth will come out.’”). The statement is trustworthy because it

represents an event speaking through the person rather than the person speaking about the event.

Zuliani, 97 S.W.3d at 595; Lagunas v. State, 187 S.W.3d 503, 512 (Tex. App.—Austin 2005, pet.

ref’d). For the excited-utterance exception to apply, (1) the exciting event must be startling enough

to evoke a truly spontaneous reaction from the declarant, (2) the reaction to the startling event must

be quick enough to avoid the possibility of fabrication, and (3) the resulting statement should

be sufficiently “related to” the startling event to ensure the reliability and trustworthiness of

that statement. McCarty v. State, 257 S.W.3d 238, 241–42 (Tex. Crim. App. 2008) (discussing

similarity between Rule 803(2) “excited utterance” exception and common law “spontaneous

utterance” exception).

The primary factor rendering an excited utterance reliable is the spontaneous nature

of the statement. Tezeno v. State, 484 S.W.2d 374, 379 (Tex. Crim. App. 1972); Mumphrey v. State,

26

155 S.W.3d 651, 658 (Tex. App.—Texarkana 2005, pet. ref’d). The statement must have been made

before the declarant’s excitement caused by the startling event or condition has abated. Zuliani,

97 S.W.3d at 596; see, e.g., Wood v. State, 18 S.W.3d 642, 652 (Tex. Crim. App. 2000) (hearsay

statement properly excluded because it was separated from event it concerned by ten to twelve hours

and declarant’s behavior in interim did not indicate any excitement or nervousness on declarant’s

part). The key to this hearsay exception is that the statement be made without reflection and an

opportunity to fabricate. Apolinar, 155 S.W.3d at 186 (examining record for evidence that declarant

did not have meaningful opportunity to reflect); see Martinez v. State, 178 S.W.3d 806, 815 (Tex.

Crim. App. 2005) (must be shown that declarant had no time or opportunity to calm herself and

reflect on two-day old events); Harris v. State, 133 S.W.3d 760, 772 (Tex. App.—Texarkana 2004,

pet. ref’d) (whether declarant had opportunity to reflect and fabricate was dispositive determination).

The startling event need not be the original offense but can be a subsequent event,

so long as it is itself startling or shocking. Harvey v. State, 123 S.W.3d 623, 630 (Tex.

App.—Texarkana 2003, pet. ref’d); see McCarty, 257 S.W.3d at 240 (“[U]nder the excited-utterance

exception, the startling event may trigger a spontaneous statement that relates to a much earlier

incident.”). Further, the requisite excitement that provokes or induces the spontaneous statement

may be a condition, such as physical pain, fear, or mental anguish. Salazar, 38 S.W.3d at 154.

However, a shocking or startling event or condition must trigger the utterance. See Harvey,

123 S.W.3d at 630; see also Sellers v. State, 588 S.W.2d 915, 918–19 (Tex. Crim. App. 1979).

We review a trial court’s determination of whether evidence is admissible under

the excited-utterance exception to the hearsay rule for an abuse of discretion. Wall v. State,

184 S.W.3d 730, 743 (Tex. Crim. App. 2006); Lagunas, 187 S.W.3d at 512. Factors we may

27

consider in evaluating whether a statement qualifies as an excited utterance include the length of

time between the occurrence and the statement, the characteristics of the declarant, whether the

statement is made in response to a question, and whether the statement is self-serving. Apolinar,

155 S.W.3d at 187; Lagunas, 187 S.W.3d at 512. The ultimate inquiry is whether the emotions,

excitement, fear, or pain of the event or condition still dominated the declarant at the time of the

statement. Apolinar, 155 S.W.3d at 186–87; Lagunas, 187 S.W.3d at 512; see Coble, 330 S.W.3d

at 294.

According to B.E.’s testimony, she and C.E. were in her room when her sister came

into the room and mentioned appellant’s name in conversation. C.E. then commented that “she

didn’t like him (appellant)” and asked B.E., “Can I tell you something?” B.E. testified that C.E.

expressed that “she was scared to tell anybody,” but she was able to convince C.E. to tell her what

happened. When the prosecutor asked B.E. whether C.E. “seem[ed] to be under the emotions of

what had happened to her” when she described the assault, B.E. answered affirmatively, indicating

that she knew C.E. was upset because she “could hear it in her voice that she was shaky” and she saw

tears coming down C.E.’s face.

While there is no question that C.E. was emotional when she told her cousin about

the assault, the test is whether, at the time of the utterance, C.E. was under domination of the

emotions triggered by a startling event, either the original sexual assault or, alternatively, the mention

of appellant’s name.13 We conclude that C.E.’s disclosure of the assault to her cousin does not

13

In its brief, the State maintains that the startling event was not the sexual assault but “fear

of hatred and ostracizing by the victim’s own family.” However, while the requisite excitement

that provokes the spontaneous statement may be a condition, such as fear, see Salazar v. State,

38 S.W.3d 141, 154 (Tex. Crim. App. 2001), the fear the State describes here was not a triggering

condition. The record does not reflect that her fear of her family’s reaction (to the sexual assault or

28

qualify as an excited utterance. While the original assault was undoubtedly shocking, the record

does not support that C.E. was still, three or four months later, dominated by the excited state

produced by the attack. Nor does the record reflect that the mention of appellant’s name was the

type of startling or shocking event contemplated by the excited-utterance rule.14 See, e.g., Barnes

v. State, 165 S.W.3d 75, 81 (Tex. App.—Austin 2005, no pet.) (11-year-old victim’s report of sexual

abuse to police officer not excited utterance because, although testimony established that victim was

crying and “very upset” during description of sexual abuse, there was no evidence that her emotional

state was due to stress of excitement caused by some startling event or condition because sexual

abuse happened five years earlier and there was no evidence of additional startling event that

triggered statements to officer); Harvey, 123 S.W.3d at 631 (outcry six years after sexual assault not

shown to be excited utterance even though declarant was “very upset about it, crying” when, as an

adult, she “broke down” and told her boyfriend details of assault when answering his questions about

paternity of her son).

C.E.’s statements were not made “suddenly” or “immediately” after the startling

event, which we assume, for purposes of analysis, was the sexual assault. She did not blurt out the

statements, but instead made them after seeking permission from her cousin to share information

with her. She also prefaced them by indicating that she was scared to tell because, according to B.E.,

“she felt like if she would have told somebody, then the whole family would hate her even though

it’s not her fault.” Also, C.E. was fifteen years old when she told her cousin about the sexual assault.

her disclosure of it) caused C.E. to spontaneously make her statements to her cousin. In fact, the

opposite is true. Her fear prevented her from telling about the assault.

14

We do not hold that the mere mention of a perpetrator’s name cannot constitute a startling

or shocking event, only that it does not under the facts of this case.

29

These circumstances surrounding C.E.’s statements—her age, the delay, her reluctance, and her

contemplation of consequences—all weigh against the spontaneity requirement for the excited-

utterance exception. See Apolinar, 155 S.W.3d at 186 (excited utterance based on assumption that

at time of statement, declarant is not capable of kind of reflection that would enable her to fabricate

information). When the exception is expanded beyond utterances made immediately or soon after

exposure to the startling event or condition, “prevarication becomes a significant possibility.” See

David F. Binder, Trial Practice Series: Hearsay Handbook § 9.7 (4th ed. 2012). “Stress and

prevarication are not mutually exclusive.” Id. Emotions, even strong ones, do not necessarily

demonstrate the lack of time or opportunity to contrive or misrepresent information.

C.E.’s disclosure to her cousin was a narrative of a painful event, not an excited

utterance. See Glover v. State, 102 S.W.3d 754, 764 (Tex. App.—Texarkana 2002, pet. ref’d). Her

delay in disclosing the assault, her reluctance to tell as indicated by seeking permission to share

“something” with her cousin, her expression of concern about the family’s reaction, and her age

support our conclusion that, at the time of the statements, C.E. had had the time, opportunity, and

capacity to reflect before telling her cousin about the sexual assault. Thus, C.E.’s statements did not

qualify as an excited utterance and therefore do not fall within this exception to the hearsay rule.

Accordingly, we conclude that the trial court erred in admitting C.E.’s hearsay statements through

her cousin’s testimony.

Appellant’s Alleged Admission

In his sixth point of error, appellant asserts that the trial court erred in admitting

Detective Carrasco’s testimony concerning appellant’s alleged admission of guilt to his wife.

30

Preservation of error is a systemic requirement on appeal. Ford v. State,

305 S.W.3d 530, 532 (Tex. Crim. App. 2009). A reviewing court should not address the merits of

an issue that has not been preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473–74 (Tex.

Crim. App. 2010) (citing Ford, 305 S.W.3d at 532). To preserve an issue for appellate review, a

party must timely object, stating the specific legal basis for the objection. Tex. R. App. P. 33.1(a)(1).

Further, with two exceptions that do not apply here, a party must continue to object each time the

objectionable evidence is offered.15 Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003).

The State introduced evidence about appellant’s purported admission of guilt to his

wife during direct examination of the detective:

Q. Well, let me ask you this: Did you receive any information on the 29th that

seemed to corroborate the fact that this defendant had had intercourse with

[C.E.]?

A. Yes, ma’am, I did.

Q. And was that, by your understanding, an admission that the defendant had

made to his wife?

A. Yes, ma’am.

At that point, appellant objected on hearsay grounds. The trial court overruled the objection “under

the circumstances.”

15

The two exceptions require counsel to either (1) make a running objection, or (2) request

a hearing outside the presence of the jury. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App.

2003) (citing Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)).

31

Later, on redirect, the prosecutor asked Detective Carrasco,

Q. And we had talked earlier about the fact that this defendant had actually

corroborated -- without getting into the statement that she made -- but that

this defendant corroborated to his wife that this actually did occur, correct?

A. Correct.

Appellant did not object. Thus, although appellant initially objected, he did not continue to object

to the evidence of his alleged admission to his wife. Therefore, he did not preserve this complaint

for appeal. See Martinez, 98 S.W.3d at 193. Accordingly, we overrule appellant’s sixth point

of error.

Harm Analysis

The erroneous admission of evidence is non-constitutional error. Kirby v. State,

208 S.W.3d 568, 574 (Tex. App.—Austin 2006, no pet.); see Casey v. State, 215 S.W.3d 870, 885

(Tex. Crim. App. 2007). Non-constitutional error requires reversal only if it affects the substantial

rights of the accused. See Tex. R. App. P. 44.2(b); Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim.

App. 2011). We will not overturn a criminal conviction for non-constitutional error if, after

examining the record as a whole, we have fair assurance the error did not influence the jury, or

influenced the jury only slightly. Barshaw, 342 S.W.3d at 93; Kirby, 208 S.W.3d at 574.

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

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

the jury’s verdict. Barshaw, 342 S.W.3d at 93–94. We review the entire record to ascertain the

effect or influence on the verdict of the wrongfully admitted evidence. Id. at 93; see Coble,

330 S.W.3d at 280 (in conducting harm analysis “we examine the entire trial record and calculate,

32

as much as possible, the probable impact of the error upon the rest of the evidence”). We consider

all the evidence that was admitted at trial, the nature of the evidence supporting the verdict, the

character of the alleged error, and how the evidence might be considered in connection with other

evidence in the case. Barshaw, 342 S.W.3d at 94. We may also consider the jury instructions, the

parties’ theories of the case, closing arguments, voir dire, and whether the State emphasized the

error. Id.; Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).

We must reverse a conviction for non-constitutional error if we have “grave doubt”

about whether the result of the trial was free from the substantial influence of the error. Barshaw,

342 S.W.3d at 94. “‘Grave doubt’ means that ‘in the judge’s mind, the matter is so evenly balanced

that he feels himself in virtual equipoise as to the harmlessness of the error.’” Id. (quoting Burnett

v. State, 88 S.W.3d 633, 637–38 (Tex. Crim. App. 2002)). “[I]n cases of grave doubt as to

harmlessness the [appellant] must win.” Id.

The erroneously admitted hearsay evidence in this case was not innocuous. C.E.’s

hearsay statements detailing the sexual assault were erroneously admitted in four separate instances,

over objection, before C.E. testified, in both oral and written form. The State emphasized the

hearsay statements throughout trial, asking several witnesses if C.E.’s statements were consistent

with each other.16 In addition, the State referred to C.E.’s hearsay statements, and the consistency

16

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.

33

among them, in closing arguments: “Consistency over time is a big deal. She was consistent with

her oral statement to [Officer Preston] and her written statement.” The State also referred to Rosie’s

written statement in closing argument and encouraged the jury to look at it during deliberations.

The State suggests that any error in admitting C.E.’s hearsay statements was not

harmful because they were admitted with a limiting instruction.17 We disagree. An instruction that

instructs a jury to consider inadmissible evidence for a limited purpose still instructs a jury to

consider inadmissible evidence. Jackson v. State, 320 S.W.3d 873, 888 (Tex. App.—Texarkana

2010, pet. ref’d) (citing Bjorgaard v. State, 220 S.W.3d 555, 562 (Tex. App.—Amarillo 2007), pet.

dism’d, improvidently granted, 253 S.W.3d 661 (Tex. Crim. App. 2008)). The complained-of

hearsay evidence should not have been considered for any purpose. The limiting instruction does

not mitigate harm or render the error harmless. We also note that while initially admitted for limited

consideration, the written statements were subsequently admitted “for all purposes.”

The State further asserts that any error in admitting C.E.’s hearsay statements

(through the officer’s testimony, her cousin’s testimony, or her written statement) or Rosie’s written

statement was harmless because the witnesses ultimately testified at trial. Again, we disagree. First,

we reject the proposition that the subsequent testimony of a declarant automatically renders the

earlier improper admission of a hearsay statement harmless. If that were the case, the prohibition

on hearsay evidence would cease to exist in any meaningful way, as its operation would be

dependent on whether a declarant testifies.

17

The State makes this argument only with respect to Officer Preston’s testimony, the

written statements, and appellant’s statement to his wife. C.E.’s hearsay statements to B.E. were

admitted without a limiting instruction.

34

Second, while it is true that error in the admission of evidence may be rendered

harmless when substantially the same evidence is admitted elsewhere without objection, see

Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986) (“Inadmissible evidence can be

rendered harmless if other evidence at trial is admitted without objection and it proves the same fact

that the inadmissible evidence sought to prove.”), we do not believe this case presents such a

situation. The doctrine of harmless error the State relies on is based on the concept of waiver. See

Leday v. State, 983 S.W.2d 713, 717–18 (Tex. Crim. App. 1998) (explaining that Texas applies

“futility rule,” meaning that despite trial court’s ruling that evidence is admissible, party must keep

making futile objections on pain of waiver); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim.

App. 1991) (“[I]t is well settled that an error in admission of evidence is cured where the same

evidence comes in elsewhere without objection; defense counsel must object every time allegedly

inadmissible evidence is offered.”). The premise is that because the defendant failed to object to the

inadmissible evidence at some point, he waived the right to complain about its admission elsewhere.

Here, however, appellant objected to the admission of C.E.’s hearsay statements throughout trial.

The only time evidence of similar facts was admitted without objection was through C.E.’s own

testimony. However, her direct testimony about the sexual assault was not objectionable evidence,

only her hearsay statements about it were. Thus, allowing her direct testimony to come in “without

objection” did not constitute a waiver of the objection to her hearsay statements.

We further reject the State’s argument about the mitigating effect of witnesses

testifying at trial, because Rosie’s subsequent testimony at trial did not render the erroneous

35

admission of her written statement harmless.18 Other than appellant’s identity as the perpetrator, she

did not testify to the contents of her statement, so the same information did not come in through

her testimony.

This case was, as these cases typically are, a “he said, she said” case. See Hammer

v. State, 296 S.W.3d 555, 561–62 (Tex. Crim. App. 2009) (“Sexual assault cases are frequently ‘he

said, she said’ trials in which the jury must reach a unanimous verdict based solely upon two

diametrically different versions of an event, unaided by any physical, scientific, or other

corroborative evidence.”). The only direct evidence of the sexual assault was C.E.’s account in her

testimony.19 The State presented no corroborating evidence.20

18

We note that Rosie’s written statement contained multiple levels of hearsay. See Tex. R.

Evid. 805 (“Hearsay included within hearsay is not excluded under the hearsay rule if each part of

the combined statements conforms with an exception to the hearsay rule provided in these rules.”).

First, she was the declarant of the written statement. The content of her statement was not

admissible under any hearsay exception. Further, the statement contained hearsay statements of her

daughter recounting the details of the sexual assault. These statements were not admissible under

any hearsay exception.

19

We do not suggest that C.E.’s testimony alone would be insufficient to support a

conviction for sexual assault. See Tex. Code Crim. Proc. art. 38.07(a),(b)(1); Perez v. State,

113 S.W.3d 819, 838 (Tex. App.—Austin 2003, pet. ref’d), overruled on other grounds by Taylor

v. State, 268 S.W.3d 571, 587 (Tex. Crim. App. 2008). Nor do we suggest that the State has any

burden to produce any corroborating or physical evidence. See Martines v. State, 371 S.W.3d 232,

240 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing Benton v. State, 237 S.W.3d 400, 404

(Tex. App.—Waco 2007, pet. ref’d)). We merely note the nature of the evidence supporting the

verdict and how the inadmissible hearsay evidence might be considered in connection with other

evidence in the case in our evaluation of the harmful effect of the erroneously admitted evidence.

20

We note that appellant’s purported admission to his wife could, arguably, be construed as

evidence corroborating C.E.’s account. However, the State offered such evidence for the limited

purpose of showing “the information [the detective] acted upon.” Several times during questioning

about the admission or conversations related to it, the trial court instructed the jury about the limited

purpose. Thus, evidence of appellant’s alleged admission was not substantive evidence of an

admission of guilt. Furthermore, a recording of Detective Carrasco’s phone call to appellant’s wife

asking her about the alleged admission was admitted into evidence. During that call, appellant’s

36

C.E.’s testimony was improperly bolstered by the repetition of her hearsay statements

through Officer Preston’s testimony, her cousin’s testimony, her mother’s written statement, and her

own written statement.21 Moreover, during deliberations the jury asked the court for copies of the

written statements of C.E. and her mother, as well as a copy of the police report. This request alone

supports the conclusion that the erroneously admitted hearsay statements influenced the

jury’s decision.

Viewing the record as a whole, we do not have fair assurance that the erroneous

admission of the complained-of hearsay statements did not influence the jury. In other words, we

have “grave doubt” about whether the result of the trial was free from the substantial influence of

this error. Accordingly, we sustain appellant’s second, third, and seventh points of error.

wife repeatedly told the detective that her husband denied the allegations, said it did not happen, and

told her over and over that “he didn’t do it.” No evidence of an actual admission—what appellant

said to his wife under what circumstances—was admitted, only inferences of such through multiple

hearsay statements. Consequently, we do not consider appellant’s alleged admission to his wife, as

reflected in this record, to be corroborating evidence of guilt.

21

Repetition is an effective method of persuasion. Experimental psychologists have found

that after hearing a plausible statement repeated, the listener becomes more confident that the

statement is true, whether or not it actually is. See, e.g., Wesley G. Moons, Diane M. Mackie

& Teresa Garcia-Marques, The Impact of Repetition-Induced Familiarity on Agreement With Weak

and Strong Arguments, 96 J. PERSONALITY & SOC. PSYCHOL., 32, 42–44 (2009); Kimberlee Weaver,

Stephen M. Garcia, Norbert Schwarz & Dale T. Miller, Inferring the Popularity of an Opinion From

Its Familiarity: A Repetitive Voice Can Sound Like a Chorus, 92 J. PERSONALITY & SOC. PSYCHOL.

821, 832 (2007); Ian Maynard Begg, Ann Anas & Suzanne Farinacci, Dissociation of Processes in

Belief: Source Recollection, Statement Familiarity, and the Illusion of Truth, 121 J. EXPERIMENTAL

PSYCHOL.: GEN. 446, 446 (1992); Lynn Hasher, David Goldstein & Thomas Toppino, Frequency

and the Conference of Referential Validity, 16 J. VERBAL LEARNING & VERBAL BEHAV. 107 (1977).

37

Opinion Testimony

In two points of error, appellant contends that the trial court erred by allowing

improper opinion testimony from Detective Carrasco.

Opinion on Truthfulness of Allegations

In his fourth point of error, appellant maintains that the trial court erred in overruling

his objection to certain questions propounded to Detective Carrasco that elicited his opinion

concerning the truthfulness of C.E.’s allegations.

“[E]xpert testimony that a particular witness is truthful is inadmissible under Rule

702.” Yount v. State, 872 S.W.2d 706, 711 (Tex. Crim. App. 1993). Thus, the State may not elicit

expert testimony that a particular child is telling the truth, or that child complainants as a class are

worthy of belief. Pavlacka v. State, 892 S.W.2d 897, 903 n.6 (Tex. Crim. App. 1994); Yount,

872 S.W.2d at 711; cf. Barshaw v. State, 320 S.W.3d 625, 629–30 (Tex. App.—Austin 2010), rev’d

on other grounds, 342 S.W.3d 91 (Tex. Crim. App. 2011). Nor may an expert offer an opinion on

the truthfulness of a child complainant’s allegations. Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim.

App. 1997). Such testimony “crosses the line” between evidence that will genuinely assist the jury

and that which usurps the jury’s function to judge the credibility of witnesses. Pavlacka, 892 S.W.2d

at 903 n.6; Yount, 872 S.W.2d at 708. Instead of experts, it is jurors who must draw “conclusions

concerning the credibility of the parties in issue.” Yount, 872 S.W.2d at 710; see Brooks v. State,

323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (“[T]he jury is the sole judge of the witnesses’

credibility and the weight to be given their testimony.”).

At the conclusion of Detective Carrasco’s direct examination, the State elicited the

detective’s opinion about C.E.’s interview at the child advocacy center:

38

Q. Was there anything about her demeanor when you’re looking at her body

language or anything about that interview that led -- that gave you any sort of

-- that raised any red flags again? I use that term a lot, but any red flags to

you that she was somehow fabricating the story?

Appellant’s counsel objected, asserting “Counsel is interfering with the providence [sic] of the jury,

that’s for the jury to make up their mind.”22 The trial court overruled the objection. At the

detective’s request, the prosecutor repeated the question:

Q. Sure. Was there anything that you observed about [C.E.]’s demeanor or

anything that you saw in that interview that led you to have any kind of

doubts or red flags about whether or not she was fabricating the story she was

giving the interviewer?

A. No, ma’am.

We agree with appellant that the detective’s answer essentially expressed his opinion that C.E. was

not fabricating her allegations—an inadmissible opinion as to C.E.’s truthfulness. See Lewis v. State,

No. 02-11-00112-CR, 2012 WL 858601, at *1 (Tex. App.—Fort Worth Mar. 15, 2012, no pet.)

(mem. op., not designated for publication) (court construed testimony of CPS investigator that she

did not “see any signs that [child] was being deceptive in any way” when she watched forensic

interview conducted at children’s advocacy center as “falling within scope of the type of expert

testimony deemed inadmissible in Schutz and Yount—an opinion as to the truthfulness of a

22

Assuming counsel was attempting to object to this question because the answer would

“invade the province of the jury,” we note that an expert’s testimony is “not objectionable because

it embraces an ultimate issue to be decided by the trier of fact.” See Tex. R. Evid. 704.

Consequently, it “is no longer a valid objection” to assert that an expert’s testimony “invades the

province of the jury.” Oritz v. State, 834 S.W.2d 343, 348 (Tex. Crim. App. 1992). However,

counsel’s objection was valid under Yount and Schutz because the question elicited an opinion on

the truthfulness of C.E.’s allegations.

39

witness”); see also Kelly v. State, 321 S.W.3d 583, 602 (Tex. App.—Houston [14th Dist.] 2010, no

pet.) (concluding State’s expert should not have been allowed to imply that child victims were telling

truth by claiming she would not have agreed to be witness if she saw evidence of deception).

The State asserts that the detective’s testimony was admissible as a lay opinion to

rebut assertions that C.E. was lying. We disagree. If a witness’s general character for truthfulness

has been attacked, Rule of Evidence 608(a) allows, for purposes of rehabilitation, the presentation

of opinion or reputation evidence of that witness’s good character for truthfulness. Michael v. State,

235 S.W.3d 723, 725–26 (Tex. Crim. App. 2007); see Tex. R. Evid. 608(a)(2). However, a lay

witness may not, under Rule 608, testify to the complainant’s truthfulness in the particular

allegations. Fuller v. State, 224 S.W.3d 823, 832–33 (Tex. App.—Texarkana 2007, no pet.); see

Schutz, 957 S.W.2d at 72 (attacking witness’s character for truthfulness does not open door to

evidence supporting truthfulness of specific allegations). Detective Carrasco’s testimony was not

opinion or reputation evidence concerning C.E.’s truthful character. Rather, it was his opinion about

her truthfulness as to these specific allegations—that she was not fabricating the allegations.

We also disagree with the State’s contention that Detective Carrasco’s testimony was

admissible as an expert opinion “because it merely aided the jury in its factual determination.”

Expert testimony must aid, not supplant, the jury’s fact-finding role. See Schutz, 957 S.W.2d at 70;

Yount, 872 S.W.2d at 708. Testimony of the truthfulness of a witness’s testimony or the truthfulness

of allegations is inadmissible because it does more than assist the trier of fact to understand the

evidence or to determine a fact in issue; it decides an issue for the jury. Yount, 872 S.W.2d at 709.

The jurors were the ones tasked with determining whether appellant had sexually assaulted C.E. In

40

this case, that determination hinged on whether they believed C.E. was telling the truth.23 It was for

the jury to decide whether C.E. fabricated the allegations.

Opinion of Appellant’s Guilt

In his fifth point of error, appellant argues that the trial court erred in permitting

Detective Carrasco to testify about the factors he considered in forming his opinion that appellant

was guilty of this sexual assault.

It is well settled that no witness, expert or lay, is competent to voice an opinion about

the guilt or innocence of a defendant. Boyde v. State, 513 S.W.2d 588, 590 (Tex. Crim. App. 1974);

Ex parte Skelton, --- S.W.3d ---, 04-12-00066-CR, 2013 WL 3455583, at *6 (Tex. App.—San

Antonio July 10, 2013, no pet. h.); see DeLeon v. State, 322 S.W.3d 375, 383 (Tex. App.—Houston

[14th Dist.] 2010, pet. ref’d) (prosecutor’s questions to detective asking who committed offenses and

where last offense occurred were improper); Huffman v. State, 691 S.W.2d 726, 730 (Tex.

App.—Austin 1985, no pet.) (trial court erred in permitting prosecutor to ask deputy sheriff if he felt

crime had been committed where appellant claimed he shot victim in self defense); see also Lovell

v. State, No. 12-04-00291-CR, 2006 WL 1916950, at *3 (Tex. App.—Tyler Nov. 22, 2006, pet.

ref’d) (mem. op., not designated for publication) (trial court erred in allowing prosecutor to ask

police officer whether, based on his investigation, officer believed defendant had “violated the law,”

as this was merely expression of opinion that officer believed defendant was guilty).

23

The State acknowledged this fact in its closing argument:

[T]his case is very simple and it boils down to what almost every single child abuse

case boils down to: Do you believe that girl? Do you believe [C.E.]? It’s simple.

It’s no more complicated than that.

41

On direct examination of Detective Carrasco, the prosecutor asked the detective

directly, “And did you believe that Felix Sandoval sexually assaulted [C.E.]?” Appellant’s objection

to the question as “invading the providence -- the province of the jury” was sustained. Subsequently,

on redirect examination of the detective, the prosecutor asked,

Q. Okay. So in a case -- again, not to beat a dead horse, but in a case where we

have a delayed outcry, what are some of the things -- if you don’t have a lot

of physical evidence to look at, what are some of the things in this case that

you looked at when you determined looking at the totality of the [sic] all of

the things that you have to determine that you believe that this defendant had,

indeed, committed the sexual assault of [C.E.]?

Appellant’s counsel again objected, asserting, “Counsel is asking the witness to render an opinion

which invades upon what the jury is supposed to do. And he is not, also, qualified as an expert

witness in this case for that particular purpose of determining whether or not this was truthful or

not.” This time the trial court overruled the objection and instructed the witness that he could answer

the question. After explaining the reasons for the lack of physical evidence, the detective stated,

. . . So, basically, all I had left was [C.E.]’s account of what happened and,

of course, the interview that I conducted with [appellant], which, again, there were

a few things that caught my attention during the course of my interview with him.

In looking back at [C.E.]’s interview and her written statement, it stayed very

consistent.

By providing this answer—explaining his doubts about appellant’s credibility and his belief of C.E.’s

account due to consistency—in response to the particular question asked, the detective expressed his

opinion that appellant was guilty. This was impermissible.

42

Harm Analysis

The erroneous admission of expert testimony is non-constitutional error. Jessop

v. State, 368 S.W.3d 653, 678 (Tex. App.—Austin 2012, no pet.); see Coble, 330 S.W.3d at 280.

Accordingly, any error must be disregarded unless it affected appellant’s substantial rights.

Barshaw, 342 S.W.3d at 94; see Tex. R. App. P. 44.2(b). A substantial right is affected when the

error had a substantial and injurious effect or influence in determining the jury’s verdict. Coble,

330 S.W.3d at 280. If the improperly admitted evidence did not influence the jury or had but a slight

effect on its deliberations, such error is harmless. Id. In analyzing the erroneous admission of expert

testimony, we may consider, among other things: (1) the strength of the evidence of the appellant’s

guilt; (2) whether the jury heard the same or substantially similar admissible evidence through

another source; (3) the strength or weakness of an expert’s conclusions, including whether the

expert’s opinion was effectively refuted; and (4) whether the State directed the jury’s attention to the

expert’s testimony during arguments. See id. at 286–88.

Once again, we observe that though the evidence was legally sufficient, there was not

overwhelming evidence supporting a finding of guilt. See Motilla v. State, 78 S.W.3d 352, 356–57

(Tex. Crim. App. 2002) (reiterating that “overwhelming evidence” of guilt is one consideration in

deciding whether improper admission of evidence was harmful).

Next, the record reflects that the jury heard similar evidence elsewhere. The State

elicited testimony concerning fabricated allegations from Melissa Rodriguez, the forensic interviewer

who interviewed C.E. at the children’s advocacy center. After establishing that Rodriguez had

previously conducted interviews in which she concluded that the child being interviewed was

not being truthful and had fabricated the allegations of abuse, the prosecutor asked about

43

C.E.’s interview:

Q. Okay. Now, we had talked about there’s some things that you know to look

at, from your training and experience, with regard to fabricated stories or

stories that a child might tell if somebody is putting them up to it in some

way. Did you have any of those concerns with your interview with this young

lady, [C.E.]?

A. No, not at all.

...

Q. Okay. Now, when you’re finished with the interview, again, you said that if

you had any concerns about that at all, you would communicate those

concerns to whatever agency, be it CPS or law enforcement; is that correct?

A. That’s correct.

Q. Okay. And did you make any such report of a concern to anyone that was

involved in the investigation of this case?

A. No.

Q. And is that because you didn’t have any concern?

A. There were no red flags at all.

This testimony was admitted without objection. Error in the improper admission of evidence is

harmless if the same or similar evidence is admitted without objection at another point in the trial.

Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010); Valle v. State, 109 S.W.3d 500,

509 (Tex. Crim. App. 2003) (“An error [if any] in the admission of evidence is cured where the same

evidence comes in elsewhere without objection.”). Here, even though the “similar evidence” was

the opinion of a different expert, the content was parallel. The fact that the jury heard similar expert

44

testimony elsewhere without objection, particularly from a witness who was explicitly offered as a

child-abuse expert, mitigates the harm.24

Regarding the strength of the expert’s opinion, we observe that Detective Carrasco’s

opinions were not particularly powerful. Given that he forwarded this case to the district attorney’s

office for prosecution after his investigation, one could logically assume that he found C.E. credible,

her allegations truthful, and believed appellant was guilty of committing this sexual assault.

Finally, while the State referenced the experts’ opinions concerning the truthfulness

of C.E.’s allegations and appellant’s guilt during closing argument, the emphasis was not on

Detective Carrasco. The prosecutor argued:

You have heard from trained, professional people who deal with these kind

of cases day in and day out. They know what to look for. They’ve seen children

lying, they’ve seen children being coached, and they’ve seen children who have been

sexually abused and that’s the majority of what they see.

And they look -- they heard [C.E.] and they knew that he did it. With the

officer, no red flags. You have that, plus you have that she was consistent.

Consistency over time is a big deal. She was consistent with her oral statement to

him and her written statement.

24

We do not hold, or even suggest, that expert opinions are interchangeable such that the

admission of one expert’s opinion automatically eliminates harm in the erroneous admission of

another expert’s opinion merely because they opine about the same topic. Our conclusion here is

based on the opinion testimony in this case and the expertise of the experts who gave it. Both of

these opinions derived from the same source—C.E.’s interview (Carrasco reviewed it while

Rodriguez conducted it)—and were similar in nature (both expressing the opinion that C.E. did not

fabricate the allegations). However, we recognize that though similar in nature, these opinions are

still distinguishable based on areas of expertise. Detective Carrasco’s opinion was based on his

generalized expertise as a law enforcement officer, whereas Rodriguez’s opinion was based on her

specialized expertise as a child-abuse expert. The strength of her opinion derives from her expertise

in that particularized field and mitigates the harm of the erroneous admission of the detective’s more

generalized opinion. Had the situation been reversed, we cannot say that we would necessarily have

found that the admission, without objection, of Detective Carrasco’s opinion substantially mitigated

the harm in an erroneous admission of Rodriguez’s testimony.

45

And then she was interviewed by a forensic interviewer. And Melissa

Rodriguez is one of -- she is the best. She’s good at what she does and she knows

what she’s doing. And she told you that there were no red flags. She told you [C.E.]

was telling the truth. But you didn’t need her to tell you that, did you, because you

saw it when you heard [C.E.]. So over and over again, trained professionals hearing

from [C.E.], and knowing the truth, no red flags. Plus you have [C.E.] and that’s all

you need.

While this argument drew attention to the opinions of both Officer Preston and the forensic

interviewer, it did not directly reference Detective Carrasco but specifically highlighted Rodriguez.

Given these particular circumstances, especially the repetition of similar, arguably

stronger, expert opinions elsewhere in the trial, we conclude that the error in admitting Detective

Carrasco’s testimony did not, by itself, have a substantial and injurious effect on the jury’s

deliberations. Accordingly, we overrule appellant’s fourth and fifth points of error.

Character-Conformity Evidence

In his final two points of error, appellant argues that the trial court erred in admitting

inadmissible character-conformity evidence.

Extraneous-Conduct Evidence

In his eighth point of error, appellant complains that the trial court erred in admitting

extraneous-conduct evidence that he inappropriately touched another child a decade before the

assault at issue here. He argues that this evidence constituted inadmissible character-conformity

evidence under Rule of Evidence 404(b).

46

At trial the State offered evidence of appellant’s extraneous conduct with J.A., C.E.’s

older sister.25 J.A. testified, in general terms, that appellant was known as a “pervert” among the

children in the family. She also indicated that she warned the younger girls, specifically C.E., about

him. J.A. expressed her opinion that appellant “was someone who could potentially hurt children

in a sexual way” because of things he had “tried” with her. She then testified about a specific

25

The record reflects quite a bit of discussion of what evidence relating to appellant’s

extraneous conduct with J.A. would be allowed. The State wanted to offer three instances of

appellant’s conduct with J.A.: (1) touching the inside of her leg when she was alone with him in a

car “when she was tiny,” (2) watching her one night when she woke up, and (3) grabbing her butt

cheeks and pulling her toward his genitals. The trial court addressed three areas of concern: notice,

Rule 404(b) character conformity, and Rule 403 prejudice.

The defense first objected to evidence of extraneous conduct with J.A. during Detective

Carrasco’s testimony on notice grounds, claiming they did not receive proper notice of the State’s

intent to introduce such evidence. The record reflects that the State relied on a paragraph of the

pretrial discovery order to provide the requisite notice. This paragraph stated, “Pursuant to Article

37.07 of the Texas Code of Criminal Procedure and Rules 403, 404 and 609, the State will offer

evidence of the following extraneous conduct of the defendant at the trial of the above cause: All

conduct including speech of the defendant as described within the statements and reports provided

to defense counsel under this order.”

From the record, it appears that the relevant notice language was contained in the offense

report of the detective, which indicated that “when [J.A.] was nine or ten [appellant] tried to touch

her” and the State’s Second Notice of Intent to Introduce Extraneous Offense Evidence which stated

that appellant “touched [J.A.] inappropriately when she was a child.” Defense counsel complained

about the adequacy of the notice, arguing that while there was the suggestion of inappropriate

conduct, there was no indication of how appellant was inappropriate with her. The defense also

objected that this failed to give notice of multiple instances of conduct. The State contended this was

proper notice for all of the incidents of extraneous conduct they offered, arguing, “We didn’t limit

the times that he touched her. We said, ‘You’re on notice that he tried to touch her inappropriately

when she was nine or ten.’ . . . . We didn’t say it was only one specific instance, we said, ‘Nine or

ten.’” When the trial court opined that “one incident does not give notice of all incidents,” the

prosecutor complained that the trial court was improperly limiting the evidence to the detective’s

summary of his review of a third-party interview of the victim. However, the trial court noted that

the State had opted to rely on the pretrial order referencing that summary to provide notice. Thus,

the court concluded that the State failed to provide notice beyond what was contained in the offense

report. Accordingly, the trial court limited the extraneous-offense evidence to one incident of

inappropriate touching.

47

incident that occurred in her aunt’s bedroom when she was nine or ten years old.26 According to

J.A., she went into her aunt’s room to look for medicine to put on a sore tooth. Appellant walked

in the room and startled her so she left the room. He then called her back in to the room to ask what

she had been doing. She went back in there to explain and show him her tooth, standing between

his legs as he sat on the bed. J.A. testified that appellant then grabbed her butt, with one hand on

each cheek, and pulled her toward him, toward his “private” area. She said that she did not

remember if he looked at her sore tooth because “it was so quick.” She did recall that he had a

“creepy” smile on his face and said the look he gave her “wasn’t the way you look at a child” but

“was more serious, as if he was seeing me [as] someone much more grown up.” She said that she

26

Before the prosecutor elicited the details about the incident, the court granted appellant’s

request for a limiting instruction. The judge instructed the jury,

Ladies and Gentlemen, you may hear evidence relating to an allegation of an

extraneous offense, another offense. You may choose to consider that evidence or

you may choose not to consider it. If you do choose to consider it, you may only

consider it for the following reasons: intent, plan, motive, preparation or opportunity.

Furthermore, you may only consider that extraneous offense, or alleged

extraneous offense, if you believe it beyond a reasonable doubt.

The court gave a similar instruction in the jury charge regarding limited consideration of any

extraneous-offense evidence:

You are instructed that if there is any testimony before you in this case

regarding the defendant’s having committed offenses other than the offense alleged

against him in the indictment in this case, you cannot consider said testimony for any

purpose unless you find and believe beyond a reasonable doubt that the defendant

committed such other offenses, if any were committed, and even then you may only

consider the same in determining the defendant’s motive, opportunity, intent,

preparation, or plan in connection with the offense alleged against him in the

indictment in this case, and for no other purpose.

48

struggled out of his hold and ran out of the room.27 J.A. testified that she never told her mom about

the incident “directly” but said she made her mom aware that “[appellant] was someone you had to

watch out for.”

Standard of Review

We review a trial court’s decision to admit or exclude evidence under an

abuse-of-discretion standard. Martinez, 327 S.W.3d at 736. A trial court abuses its discretion only

if its determination “lies outside the zone of reasonable disagreement.” Id.; Casey, 215 S.W.3d at

879. A trial court’s decision to admit evidence of an extraneous offense is generally within this zone

if the evidence shows that (1) an extraneous transaction is relevant to a material, non-propensity

issue, and (2) the probative value of that evidence is not substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading of the jury. De La Paz v. State, 279 S.W.3d

336, 344 (Tex. Crim. App. 2009). Furthermore, if the trial court’s evidentiary ruling is correct on

any theory of law applicable to that ruling, we will uphold that decision. Id.

Rule 404(b)

Texas Rule of Evidence 404(b) prohibits the admission of evidence of extraneous

offenses or bad acts to prove a person’s character or to show that the person acted in conformity with

that character. See Tex. R. Evid. 404(b). However, such evidence may be admissible when it has

27

Although the court limited the extraneous-conduct evidence to this one touching incident,

the prosecutor initially elicited testimony that there were “at least three” instances where appellant

made J.A. “feel uncomfortable.” After describing the incident in her aunt’s bedroom, the prosecutor,

apparently misunderstanding the court’s ruling, attempted to elicit testimony about another time

“where [J.A. was] alerted that [appellant] had a sexual interest in [her].” Appellant’s objection to

lack of notice about further extraneous conduct was sustained.

49

relevance apart from character conformity. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App.

2011). Extraneous misconduct may be admissible for some other purpose, such as to show motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex.

R. Evid. 404(b); Montgomery, 810 S.W.2d at 387–88. This list is illustrative—the exceptions are

neither mutually exclusive nor collectively exhaustive. See De La Paz, 279 S.W.3d at 343. Rebuttal

of a defensive theory is one of the “other purposes” for which extraneous-offense evidence may be

admitted under Rule 404(b). Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Moses

v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). “‘Rule 404(b) is a rule of inclusion rather

than exclusion.’” De La Paz, 279 S.W.3d at 343 (quoting United States v. Bowie, 232 F.3d 923, 929

(D.C. Cir. 2000)). “The rule excludes only that evidence that is offered (or will be used) solely for

the purpose of proving bad character and hence conduct in conformity with that bad character.” Id.

(citing Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996)) (emphasis added).

If a defendant objects on the grounds that the evidence is not relevant, violates Rule

404(b), or constitutes an extraneous offense, the State must show that the uncharged misconduct

evidence has relevance apart from showing character. Rankin, 974 S.W.2d at 718 (citing

Montgomery, 810 S.W.2d at 387); see De La Paz, 279 S.W.3d at 343. The mere fact that the State

offers evidence for a purpose other than character conformity, or any of the other enumerated

purposes in Rule 404(b), does not, in itself, make the evidence admissible. DeLeon v. State,

77 S.W.3d 300, 312 (Tex. App.—Austin 2001, pet. ref’d) (citing Rankin, 974 S.W.2d at 719).

50

Extraneous-offense evidence will generally be relevant, but the permissible purposes for which the

State is offering it may not be.28 Id.

Motive

The State argued at trial that the evidence of extraneous conduct was admissible to

show appellant’s motive. Although proof of motive is not a required element in criminal cases,

“evidence of motive is one kind of evidence [that aids in] establishing proof of an alleged offense.”

Crane v. State, 786 S.W.2d 338, 349–50 (Tex. Crim. App. 1990). However, for evidence of motive

to be admissible, the evidence must tend to raise an inference that the accused had a motive to

commit the alleged offense for which he is on trial.29 Bush v. State, 628 S.W.2d 441, 444 (Tex.

Crim. App. 1982); Rodriguez v. State, 486 S.W.2d 355, 358 (Tex. Crim. App. 1972). “[M]otive

refers to an emotion that would provoke or lead to the commission of a criminal offense.”

Rodriguez, 486 S.W.2d at 358. Evidence to show motive is the circumstantial evidence that would

appear to cause or produce the emotion that would in turn provoke or incite the commission of the

criminal offense. Id.; see, e.g., Ladd v. State, 3 S.W.3d 547, 568 (Tex. Crim. App. 1999) (evidence

28

Here, the State asserted at trial that appellant’s fabrication defense brought all of the

enumerated exceptions listed in Rule 404(b) into play and wanted to have all of them included in the

court’s limiting instruction. The court, however, determined that the evidence did not raise all of

the exceptions and concluded that a limiting instruction on the entire “laundry list” would not be

appropriate. After several discussions, the judge limited the jury’s consideration to motive,

opportunity, intent, preparation, and plan.

29

Evidence of an extraneous offense to show motive is usually required to relate or pertain

to other acts by the accused against the victim of the crime for which the accused is presently being

prosecuted. Foy v. State, 593 S.W.2d 707, 708–09 (Tex. Crim. App. 1980); Zuliani v. State,

903 S.W.2d 812, 827 (Tex. App.—Austin 1995, pet. ref’d). This Court has previously held that

when, as in this case, the acts do not relate to the same victim, they are not admissible to show

motive. See Zuliani, 903 S.W.2d at 827.

51

of defendant’s use of cocaine on night of murder was admissible to show defendant was motivated

to kill in order to obtain money for cocaine); Porter v. State, 623 S.W.2d 374, 386 (Tex. Crim. App.

1981) (evidence that defendant had committed robbery 11 days earlier was relevant to show his

motive for murdering police officer apprehending him).

On appeal, the State does not explain how appellant’s touching J.A. on the butt when

she was nine or ten years old and pulling her toward him with a creepy smile on his face produced

the emotion that provoked appellant to force C.E. to have sexual intercourse with him over a decade

later. We conclude there is an insufficient relationship between the extraneous conduct and the

State’s efforts to establish appellant’s motive for committing the charged offense. See Lopez

v. State, 288 S.W.3d 148, 165–66 (Tex. App.—Corpus Christi 2009, pet. ref’d) (evidence of

extraneous acts with third party—consensual sexual activity without condom and failure to disclose

HIV positive status—did not establish motive for defendant to sexually assault victim).

Accordingly, we find that the extraneous acts had no relevance as to motive.

Opportunity

Evidence of an extraneous offense may be admissible under Rule 404(b) to rebut a

defense of “lack of opportunity” or “impossibility.” See, e.g., Wheeler v. State, 67 S.W.3d 879,

887–88 (Tex. Crim. App. 2002) (extraneous offense involving another child “with family members

in the immediate vicinity” admissible to rebut claim of lack of opportunity and impossibility where

defense was that defendant was never alone with child victim); Powell v. State, 63 S.W.3d 435, 438

(Tex. Crim. App. 2001) (extraneous sexual offenses admissible in sexual abuse case where defense

claimed lack of opportunity to commit offense because he was never alone with victim and many

other children were always present); Abshire v. State, 62 S.W.3d 857, 860 (Tex. App.—Texarkana

52

2001, pet. ref’d) (extraneous-offense evidence admissible in child sexual assault case where defense

was lack of opportunity and all of defendant’s family members testified that he never had

opportunity to commit offense in his home because no room was ever locked and people were

always in position to see what transpired in house).

The issue of opportunity, or lack thereof, was not raised in this case. In fact, contrary

to claiming that he lacked the opportunity, appellant arguably conceded that he had the opportunity

to commit the offense when he acknowledged to the detective in the interview that he remembered

the occasion when C.E. spent the night at his house that summer and recalled that his wife left the

house for about 10 to 15 minutes. Thus, the extraneous conduct was not relevant to the uncontested

issue of opportunity.

Intent

An extraneous offense may be admissible to prove the culpable mental state required

for the charged offense if the required intent cannot be inferred from the act itself, or if the accused

presents evidence to rebut that inference. Brown v. State, 96 S.W.3d 508, 512 (Tex. App.—Austin

2002, no pet.); see Prior v. State, 647 S.W.2d 956, 959 (Tex. Crim. App. 1983); Dunklin v. State,

194 S.W.3d 14, 26 (Tex. App.—Tyler 2006, no pet.). However, when the State’s direct evidence

shows the intent element of the crime and that evidence is uncontradicted by the defendant and not

undermined by cross-examination of the State’s witnesses, evidence of extraneous offenses to show

intent is inadmissible. Rankin, 974 S.W.2d at 719; DeLeon, 77 S.W.3d at 312.

The contested issue in this case was whether appellant had sexual intercourse with

C.E. at all. C.E. testified to specific acts perpetrated by appellant that resulted in sexual intercourse.

The jury could infer the required guilty intent from the act of sexual intercourse itself. See Boutwell

53

v. State, 719 S.W.2d 164, 180 (Tex. Crim. App. 1985) (intent not contested issue in sexual abuse

case where act itself is indicative of such); Bjorgaard, 220 S.W.3d at 560 (“Simply put, the acts

speak for themselves and provide [a] basis (if believed) for one to reasonably infer that appellant

consciously sought to fondle [the victim’s] sex organ.”). Appellant neither contradicted the State’s

evidence nor undermined the intent element through cross-examination. He never advanced a theory

suggesting the lack of intent; that is, he never suggested that he engaged in the conduct without the

requisite intent. Appellant did not claim at trial, nor did the evidence suggest, that he accidentally

committed this act. Rather, he denied engaging in the conduct altogether. Therefore, the inclusion

of the extraneous conduct was not necessary to disprove an otherwise innocent intent. See Clark

v. State, 726 S.W.2d 120, 124 (Tex. Crim. App. 1986) (appellant’s actions in signing her own name

to 22 checks made out to her employer and depositing them into her bank account showed requisite

intent for theft of property and no evidence was introduced to offer any other alternative; thus,

extraneous offenses were “not necessary to shore up the State’s case or disprove an otherwise

innocent intent”); Lopez v. State, 288 S.W.3d 148, 165 (Tex. App.—Corpus Christi 2009, pet. ref’d)

(defendant did not claim that he accidentally committed sexual acts of penetrating victim’s anus and

causing victim’s penis to contact his mouth; therefore, extraneous acts not necessary to disprove

otherwise innocent intent). Furthermore, even if appellant had made his intent an issue at trial (e.g.,

by admitting to the alleged sexual intercourse while claiming the conduct was somehow accidental

or unintentional), we fail to see how the particular extraneous conduct admitted here would be

relevant in negating such a defense. We are unable to discern how the evidence of touching J.A. a

decade earlier shows his intent to have sexual intercourse with C.E.

54

Moreover, the evidence of extraneous conduct lacked the requisite similarity to the

charged offense. When evidence of an extraneous offense is offered to show intent, the relevance

of the extraneous offense derives from the “doctrine of chances”—the instinctive recognition of that

logical process which eliminates the element of innocent intent when similar instances ending in the

same result recur. Casey, 215 S.W.3d at 881 (citing Plante v. State, 692 S.W.2d 487, 491–92 (Tex.

Crim. App. 1985)); Brown, 96 S.W.3d at 513; see De La Paz, 279 S.W.3d at 347 (“The ‘doctrine

of chances’ tells us that highly unusual events are unlikely to repeat themselves inadvertently or by

happenstance.”). For the doctrine to apply, there must be a distinct similarity between the charged

and extraneous offenses, since it is the improbability of a like result being repeated by mere chance

that gives the extraneous offense probative weight. Plante, 692 S.W.2d at 492; Brown, 96 S.W.3d

at 512; see Casey, 215 S.W.3d at 881 (“[E]vidence of a remarkably similar act might be admissible

to prove . . . intent . . . under ‘the doctrine of chances.’” (Emphasis added.)). Appellant’s touching

the butt of a ten-year-old child, over her clothing, is in no way similar to penetrating the sexual organ

of a 15-year-old child with his penis.

Appellant’s intent was not at issue, nor were the acts sufficiently similar. Thus, we

conclude the extraneous-conduct evidence was not relevant to the issue of appellant’s intent to have

sexual intercourse with C.E.

Preparation or plan

The “preparation” or “plan” exception allows admission of evidence to show steps

taken by the defendant in preparation for the charged offense. Daggett v. State, 187 S.W.3d 444, 451

(Tex. Crim. App. 2005); see Boutwell, 719 S.W.2d at 181 (“Central to the common plan or scheme

exception is that there be a plan or scheme and the extraneous offenses are steps taken towards the

55

accomplishment of the plan.”). Thus, if the proponent is unable to articulate exactly how an

extraneous act tends to prove a step toward an ultimate goal or overarching plan, the evidence is not

admissible to prove part of a “plan.” Daggett, 187 S.W.3d at 452.

In the present case, the State offered J.A.’s testimony about the touching incident as

evidence of a common scheme or plan to sexually assault C.E. However, the State failed to

articulate any logical link between touching J.A.’s butt and an ultimate goal or plan to have sexual

intercourse with C.E. a decade later. Neither preparation nor plan was an issue raised in this case.

Therefore, they could not serve as a proper basis for admitting the extraneous conduct.

Rebuttal of a Defensive Theory

Rebuttal of a defensive theory is one of the “other purposes” for which extraneous-

offense evidence may be admitted under Rule 404(b). Williams, 301 S.W.3d at 687; Moses,

105 S.W.3d at 626. This includes rebutting the defensive theory that the complainant fabricated the

allegations against the defendant. Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008); see

Gaytan v. State, 331 S.W.3d 218, 224 (Tex. App.—Austin 2011, pet. ref’d). If the State can show

that a defendant has committed similar sexual assaults against unrelated and unconnected children,

a defense allegation that the complainant fabricated her claim is less likely to be true. See Bass,

270 S.W.3d at 562–63. By showing that the complainant’s allegations are less likely to be

fabricated, the extraneous-offense evidence directly rebuts the defensive claims and has

logical relevance aside from character conformity. Id.; Applewhite v. State, 08-11-00121-CR,

2012 WL 4447592, at *2 (Tex. App.—El Paso Sept. 26, 2012, pet. ref’d) (op., not designated

for publication).

56

In the present case, the State argues that the extraneous-conduct evidence was

admissible to rebut two defensive theories: fabrication and “sloppy police work.” We disagree. To

be admissible for rebuttal of a fabrication or “frame-up” defense, “the extraneous misconduct must

be at least similar to the charged one.” Wheeler, 67 S.W.3d at 887 n.22; see Richardson v. State,

328 S.W.3d 61, 71 (Tex. App.—Fort Worth 2010, pet. ref’d) (“By raising a defensive theory, a

defendant opens the door for the State to offer rebuttal testimony regarding an extraneous offense

if the extraneous offense has common characteristics with the offense for which the defendant is on

trial.”); Blackwell v. State, 193 S.W.3d 1, 13 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (“To

be probative, the extraneous-offense evidence admitted to rebut a defensive theory must be similar

to the charged offense.”); see also Dennis v. State, 178 S.W.3d 172, 179 (Tex. App.—Houston [1st

Dist.] 2005, pet. ref’d) (holding that extraneous-offense evidence admitted to rebut defensive theory

of frame-up need not be signature crime or nearly identical to charged offense; Rule 404(b) requires

only similarity to charged offense). We conclude the extraneous conduct here lacks the requisite

similarity to the charged offense to be admissible to rebut the defensive theory of fabrication.

Touching the butt over the clothing is not sufficiently similar to penile penetration of the sexual

organ that it logically serves to make it more or less probable that C.E. lied.

In addition, simply because a defensive theory is advanced does not automatically

mean extraneous-offense evidence is admissible to rebut it. The evidence of extraneous misconduct

must logically serve to make more or less probable defensive evidence that undermines an elemental

fact. See De La Paz, 279 S.W.3d at 343 (citing Martin v. State, 173 S.W.3d 463, 466 (Tex. Crim.

App. 2005)). The extraneous-conduct evidence about the touching incident does not logically serve

to make it more or less probable that law enforcement conducted an inadequate investigation in this

57

case. Thus, contrary to the State’s contention, the evidence was not admissible to rebut the “sloppy

police work” defense.

We conclude that the extraneous-conduct evidence was not admissible to rebut either

the defensive theory of fabrication or “sloppy police work.”

False Impression

At trial the prosecutor argued that the extraneous-conduct evidence was admissible

to rebut appellant’s assertion that he was “not a molester.” On appeal, the State addresses this

assertion in its argument that the extraneous-conduct evidence was admissible to rebut a defensive

theory.30 The State asserts that appellant’s extraneous conduct with J.A. was admissible because

extraneous offenses are admissible “when a false picture is presented by the defense” and notes that

defense counsel highlighted appellant’s statement that he did not molest children during his

questioning of Detective Carrasco.31

30

The State maintains in its brief that “asserting the argument ‘I’m not a molester’” was one

of the ways appellant presented a fabrication defense at trial.

31

As a general rule, the defensive theory that the State wishes to rebut through the use of

extraneous-offense evidence must be elicited on direct examination by the defense and may not by

elicited by “prompting or maneuvering” by the State. See Shipman v. State, 604 S.W.2d 182, 185

(Tex. Crim. App. 1980); Roberts v. State, 29 S.W.3d 596, 601 (Tex. App.—Houston [1st Dist.]

2000, pet. ref’d). An exception to this general rule exists: when a defendant voluntarily or

nonresponsively testifies concerning extraneous matters on cross-examination, the State may correct

any false impression presented by such answer. See Martinez v. State, 728 S.W.2d 360, 361–62

(Tex. Crim. App. 1987); Roberts, 29 S.W.3d at 601. Accordingly, if a defendant testifies to a

blanket statement of good conduct or character, he may “open the door” by leaving a false

impression with the jury about a relevant act or character trait. Daggett v. State, 187 S.W.3d 444,

452 (Tex. Crim. App. 2005). In this case, appellant did not testify at trial. Thus, he did not testify

to a blanket statement of good conduct or character, through direct testimony or on

cross-examination. Nor did he present such a picture through a defense witness. Rather, his

statement was made during the interview with Detective Carrasco. The State offered the video of

this interview into evidence. We acknowledge that during cross-examination defense counsel

58

Evidence that is otherwise inadmissible may become admissible when a party opens

the door to such evidence. Williams, 301 S.W.3d at 687; Hayden v. State, 296 S.W.3d 549, 554

(Tex. Crim. App. 2009). A party opens the door by leaving a false impression with the jury that

invites the other side to respond. Hayden, 296 S.W.3d at 554; Daggett v. State, 187 S.W.3d 444,

452 (Tex. Crim. App. 2005). Under this exception, “when a witness’s blanket assertion of

exemplary conduct is directly relevant to the offense charged, the opponent may both

cross-examine the witness and offer extrinsic evidence rebutting the statement.” Winegarner

v. State, 235 S.W.3d 787, 790–91 (Tex. Crim. App. 2007) (quoting Daggett, 187 S.W.3d at 453 n.24

(internal quotation marks omitted)). More particularly, when a defense witness presents a picture

that the defendant is not the type of person to commit the charged offense, the prosecution may

impeach that witness’s testimony by introduction of similar extraneous offenses. Wheeler,

67 S.W.3d at 885 (citing McIlveen v. State, 559 S.W.2d 815, 822 (Tex. Crim. App. 1977)); Roberts

v. State, 29 S.W.3d 596, 601 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d); see, e.g., Garcia v.

State, 308 S.W.3d 62, 67–68 (Tex. App.—San Antonio 2009, no pet.) (by eliciting testimony from

defendant on direct examination broadly disclaiming that he had ever sexually assaulted someone,

questioned the detective about appellant’s “I’m not a molester” assertion when he asked about

appellant’s denial of the instant offense during the interview, apparently attempting to show that

more happened in the interview than was elicited by the State during direct examination. However,

we are troubled by the notion that appellant created a false impression at trial by making this

statement during the investigation before he was charged with this offense, such that it entitled the

State to offer extraneous-offense evidence to correct the impression or rebut the assertion when the

State itself offered the video into evidence. However, we address the “false impression” exception

because the State alludes to it in its brief, and we will uphold the trial court’s evidentiary ruling if

it is correct on any theory of law applicable. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim.

App. 2009).

59

defense counsel opened door for State to cross-examine defendant and to present rebuttal evidence

of extraneous offense of same character as charged aggravated sexual assault).

We are not persuaded that the false-impression exception permitted the admission of

the extraneous misconduct in this case. The charged conduct in this case was penile penetration of

the sexual organ. The extraneous conduct was touching the butt over clothing. The assertion of

good conduct was “I’m not a molester.” The extraneous conduct is not similar to the charged

offense, nor does it rebut appellant’s assertion that he is not a molester. The incident of touching

J.A.’s butt, while perhaps inappropriate, does not demonstrate that appellant is a “molester.” This

conclusion is supported by the State’s description of the evidence at trial and J.A.’s testimony.

The prosecutor initially said that the evidence of extraneous conduct was that

appellant “tried to molest [J.A.]” and “tried to touch her inappropriately.” When the court sought

clarification, the prosecutor conceded that “this defendant never actually committed an offense

against them. He did things to them that made them feel uncomfortable that they felt was leading

up to something inappropriate.”32 Most importantly, the prosecutor admitted that “we’re not

claiming that he actually molested these children. They’re going to come in and tell this jury why

they knew he was a creep and why they knew to watch out for him.” In her testimony, J.A. testified

consistently with this latter description. She opined that appellant was a pervert because of instances

where he “tried something” that made her “feel uncomfortable.” She described the look on

appellant’s face when he pulled her toward him as “a smile and I didn’t like it” and expressed that

she was young and felt frightened.

32

There is some indication in the record that the extraneous conduct may have involved

“some inappropriate contact” with another child in addition to J.A., but the record does not contain

any details about that alleged conduct.

60

This evidence, while demonstrating inappropriate conduct, does not rebut appellant’s

claim that he was “not a molester.” Evidence that would rebut such a claim would be evidence of

actual molestation, not conduct that made J.A. feel uncomfortable, or even frightened, but that fell

short of molestation. Therefore, we conclude that this evidence was not admissible to correct a false

impression or rebut appellant’s assertion in the interview that he was “not a molester.”

Conclusion Regarding Extraneous Conduct

To be admissible, extraneous misconduct must be relevant for reasons other

than suggesting that the appellant acted in conformance with his character. See Alba v. State,

905 S.W.2d 581, 585 (Tex. Crim. App. 1995). The incident of appellant’s touching J.A.’s butt over

her clothing logically served none of the non-character-conformity purposes adduced by the State

and amounts to nothing more than propensity evidence. Consequently, having no relevance beyond

character conformity, the extraneous misconduct was inadmissible under Rule 404(b).

Harm Analysis

Having concluded that the trial court erred, we must now determine if the error was

harmful and therefore is reversible. The erroneous admission of extraneous-offense evidence is

non-constitutional error. See Martin v. State, 176 S.W.3d 887, 897 (Tex. App.—Fort Worth 2005,

no pet.); Johnson v. State, 84 S.W.3d 726, 729 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d);

see also Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005). Thus, we conduct our

harm analysis under the framework for reviewing non-constitutional error previously set forth in this

opinion. See supra pp. 32–33.

61

Regarding the quantum of evidence demonstrating appellant’s guilt, enough was there

to support conviction.33 But since there were no witnesses to the incident save for C.E. and

appellant, we cannot say that the evidence of appellant’s guilt was overwhelming. Next, the error

involved the introduction of evidence that was inherently inflammatory. Evidence showing the

commission of extraneous misconduct is usually excluded because such evidence is inherently

prejudicial, tends to confuse the issues of a case, and forces the accused to defend himself against

charges which he had not been notified would be brought against him. See Sims v. State,

273 S.W.3d 291, 294–95 (Tex. Crim. App. 2008); Abnor v. State, 871 S.W.2d 726, 738 (Tex. Crim.

App. 1994). “By its very nature, an improperly admitted extraneous offense tends to be harmful.

It encourages a jury to base its decisions on character conformity, rather than evidence that the

defendant committed the offense with which he or she has been charged.” Jackson v. State,

320 S.W.3d 873, 889 (Tex. App.—Texarkana 2010, pet. ref’d). Moreover, “[b]oth sexually related

misconduct and misconduct involving children are inherently inflammatory.” Montgomery,

810 S.W.2d at 397; see Bjorgaard, 220 S.W.3d at 562; DeLeon, 77 S.W.3d at 316.

In considering how the erroneously admitted evidence might be considered in

connection with other evidence in the case, we observe that the evidence of appellant’s extraneous

misconduct was introduced to support J.A.’s opinion that appellant was a sexual predator.34 The

33

Again, because C.E. was under 17 years of age at the time of this offense, her testimony

alone is sufficient to support appellant’s conviction for this sexual assault. See Tex. Code Crim.

Proc. art. 38.07(a), (b)(1); Perez, 113 S.W.3d at 838.

34

The prosecutor introduced questions concerning appellant’s extraneous misconduct with

the following exchange:

Q. Now, you have the opinion that [appellant] was someone who could

potentially hurt children in a sexual way, right?

62

State began the presentation of its case-in-chief with the following remarks by the prosecutor in her

opening statement:

He is the [E.] family’s big, ugly secret. All the children in the family knew to watch

out for him. All the children in the family knew he was a pervert, and yet the adults

did nothing about it.

This theme characterizing appellant as a pervert or sexual predator was presented throughout trial

and was emphasized through several witnesses.35 In addition, appellant’s extraneous conduct was

referenced elsewhere in the guilt-innocence phase of the trial.36 Further, the State mentioned the

A. Yes.

Q. And did you have that opinion because of something he had tried with you?

A. Yes.

Q. Okay. Were there several instances that made you feel uncomfortable with

this defendant?

A. At least three.

Q. At least three. Now, I actually want to start with the last one.

35

For example, the State asked the investigating detective, “Were you aware, when you were

conducting your investigation, as well, that [appellant] was -- he was somebody that the kids in the

family knew to watch out for?” The prosecutor also asked B.E., C.E.’s cousin, “Is it fair to say that

all the kids in the family knew to watch out for [appellant]?”

36

When the prosecutor asked B.E. why she did not like appellant, B.E. explained, “Because

knowing what he had done with . . . my older cousin, [J.A.] . . . .” In addition, the prosecutor asked

Rosie, C.E.’s mother, “So was there any indication from any of your other daughters that he was

someone who was interested in children, sexually?” and established in the follow-up question that

the daughter was J.A. Also, the extraneous conduct was referenced in Rosie’s written statement and

the video recording of the detective’s interview of appellant, both of which were offered into

evidence by the State.

63

extraneous conduct in closing argument.37 Thus, it cannot be said that little attention was focused

on the extraneous misconduct, and this enhanced the potential for the evidence to improperly

influence the jury.

Further, while the trial court instructed the jury in the jury charge to consider J.A.’s

testimony only for a limited purpose, this limiting instruction did not serve to mitigate harm. If the

jury did heed the trial court’s admonition, the admonition itself permitted consideration of the

evidence for an improper purpose. As we noted previously, an instruction that instructs a jury to

consider inadmissible evidence for a limited purpose still instructs a jury to consider inadmissible

evidence. See discussion supra p. 34. The extraneous conduct should not have been considered for

any purpose.

In this case, the State sought to establish that appellant was a “pervert” who was

sexually interested in children. The purpose in doing so was to show that he is the type of person

who engages in sexual misconduct with children and, therefore, that he perpetrated the instant sexual

assault against C.E. This is precisely the improper inference that Rule 404(b) prohibits. Invoking

the concept of character conformity cannot legally be done. Because the State did so here, we cannot

discount the likelihood that appellant’s extraneous conduct with J.A. substantially influenced his

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When discussing Rosie’s written statement, the prosecutor said:

. . . [L]ook about mid-page: “I asked her if she knew or heard anything about

him trying to touch my nieces and my other daughter at any time.”

“She said she had not heard anything.”

Well, if you remember from the chart -- and we’re talking about trying to

touch my nieces and my other daughter. “My other daughter.” So, again, [defense

counsel] may be confused, you don’t need to be.

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conviction. Thus, appellant was harmed by its admission. We sustain appellant’s eighth point

of error.

Sexual Interest in Children

In his ninth point of error, appellant asserts that the trial court erred in admitting

testimony of C.E.’s mother, Rosie, concerning his sexual interest in children because it constituted

inadmissible character-conformity evidence.

As noted previously, preservation of error is a systemic requirement on appeal. Ford,

305 S.W.3d at 532. A reviewing court should not address the merits of an issue that has not been

preserved for appeal. Wilson, 311 S.W.3d at 473–74. To preserve an issue for appellate review, a

party must timely object, stating the specific legal basis for the objection. Tex. R. App. P. 33.1(a)(1).

An objection is timely if made at the earliest opportunity or as soon as the grounds for the objection

become apparent. Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011); Gillemvaters

v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006). If a defendant fails to object until after an

objectionable question has been asked and answered, and he can show no legitimate reason to

justify the delay, his objection is untimely, and any claim of error is forfeited. Luna v. State,

268 S.W.3d 594, 604 (Tex. Crim. App. 2008); see Saldano v. State, 70 S.W .3d 873, 889 (Tex. Crim.

App. 2002) (“[T]he failure to object in a timely and specific manner during trial forfeits complaints

about the admissibility of evidence.”).

In this case, the prosecutor elicited testimony from C.E.’s mother that she had learned

from her older daughter that appellant was sexually interested in children:

Q. So was there any indication from any of your other daughters that he was

someone who was interested in children, sexually?

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A. Yes.

Q. And which daughter is that?

A. [J.A.].

Only at that point did appellant object. However, the grounds for objection were apparent when the

prosecutor asked the improper question about Rosie’s knowledge of appellant’s sexual interest in

children. Appellant’s objection to the complained-of evidence was untimely because it was made

after not only the objectionable question was asked and answered but after the follow-up question

was asked and answered as well. Because appellant failed to timely object to the complained-of

testimony, he failed to preserve error relating to its erroneous admission. Accordingly, we overrule

his ninth point of error.

CONCLUSION

Reversible error is present throughout the record of this case. The erroneous removal

of Juror Brooks from the jury affected a substantial right of appellant’s and is reversible error. The

erroneous admission of multiple hearsay statements affected a substantial right of appellant’s and

is reversible error. And the erroneous admission of the extraneous-conduct evidence affected a

substantial right of appellant’s and is reversible error.

Moreover, even if these errors were not harmful in and of themselves, which we

conclude they were, the combined effect of all the errors in this case (including the opinion testimony

of Detective Carrasco) harmed appellant. See Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim.

App. 2009) (“[I]t is possible for a number of errors to cumulatively rise to the point where they

become harmful[.]”); see also Stahl v. State, 749 S.W.2d 826, 832 (Tex. Crim. App. 1988).

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Accordingly, we reverse appellant’s judgment of conviction and remand the cause

to the trial court for a new trial.

__________________________________________

J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Rose and Goodwin*

*Justice Goodwin joins Part I of the opinion only and concurs in the judgment.

Reversed and Remanded

Filed: September 13, 2013

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