Joe Louis Tienda v. State

Opinion filed May 14, 2015

In The

Eleventh Court of Appeals

__________

No. 11-11-00283-CR

__________

JOE LOUIS TIENDA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 428th District Court

Hays County, Texas

Trial Court Cause No. 07-802

OPINION

Joe Louis Tienda appeals his jury convictions for the offense of indecency

with a child by sexual contact. See TEX. PENAL CODE ANN. § 21.11(a)(1), (c) (West

2011). Appellant was indicted on three counts of indecency with a child by sexual

contact. The jury acquitted him of Count One and convicted him of Counts Two

and Three. On Count Three, the jury assessed his punishment at confinement for a

term of six years in the Texas Department of Criminal Justice, Institutional Division.

On Count Two, the jury assessed his punishment at confinement for a term of ten

years and recommended that the punishment be suspended. Accordingly, the trial

court suspended the imposition of Appellant’s ten-year sentence of confinement and

placed him on community supervision for a term of ten years.

In six issues on appeal, Appellant contends that (1) one of his convictions for

indecency with a child should be set aside on double jeopardy grounds; (2) the

evidence was insufficient to sustain his convictions; (3) the trial court erred when it

admitted, as an excited utterance, the testimony of a school nurse regarding the

child’s statement to her; (4) the trial court erred when it admitted, as an excited

utterance, an audio recording of an interview of the child taken by a police detective;

(5) the trial court erred when it admitted out-of-court statements made by the child

to the police detective as information relied upon by the detective in his

investigation; and (6) the trial court erred when it allowed improper opinion

testimony from the police detective. We reverse and remand.

Background Facts

Appellant was charged by indictment with three counts of indecency with a

child by contact. In light of the jury’s verdict, we direct our attention to Counts Two

and Three. These two counts of the indictment alleged that Appellant engaged in

sexual contact “by touching the buttocks of [S.D.] with his male sexual organ with

the intent to arouse or gratify the sexual desire of [Appellant].” Count Two alleged

the date of occurrence as “on or about” July 1, 2007, and Count Three alleged the

date of occurrence as “on or about” August 1, 2007.

S.D. was a sixteen-year-old girl who lived with her mother and Appellant, her

stepfather. In September of 2007, S.D. told Darelle Jordan, a school nurse, that some

events happened over the summer between her and her stepfather that made her feel

uncomfortable. Nurse Jordan testified that S.D. made the following report to her:

She said he -- when her mother was not home and she was alone

at the house, that he would sit next to her, close to her, put his hand near

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her breast.1 She would ask him to move his hand, he would refuse. He

would joke, act like it was all in fun. She would have to actually remove

herself from his presence in order to get him to leave her alone. She

would try to retreat to her bedroom.

When she retreated to her bedroom, he followed her into the

bedroom, he laid down in the bed next to her, he rubbed his pelvis and

genital area on her, he laid on top of her. When he was doing that, she

could feel his erect penis, it made her frightened and uncomfortable.

Nurse Jordan told S.D. that she would have to report these incidents to Child

Protective Services (CPS). S.D. did not want Nurse Jordan to report anything. Nurse

Jordan testified that S.D. was worried that, if Appellant was reported to authorities,

it “might cause problems in their family, that financial support by [Appellant] would

be missed by her family.” Nevertheless, Nurse Jordan reported these events to CPS.

Scott Johnson, a detective with the San Marcos Police Department, received

the report from CPS. He met with S.D. at her high school. Detective Johnson

testified that he interviewed S.D. and recorded her statements about what had

happened between her and Appellant. He testified that S.D. made the following

report to him:

[S.D.] described activity which began in that summer proceeding

[sic] that school year of 2007. What began as uncomfortable displays

of affection on the part of [Appellant] where he began kissing her,

which then evolved into further attempts to kiss on the mouth. She

described him trying to kiss her using his tongue. She said that he began

-- when he would embrace her, he would frequently brush his hand

across her --

...

As I was saying, she described the defendant brushing his hand

across her breast, making her feel very uncomfortable. She then

described her efforts to try to avoid him by going into her room and

staying in her room.

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Count One of the court’s charge permitted the jury to find that Appellant engaged in sexual contact

with S.D. by touching her breast with his hands with the intent to arouse or gratify his sexual desire. As

noted previously, the jury acquitted Appellant of this offense.

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She described [Appellant] coming into her room and lying in bed

with her. And at times, on more than one occasion, lying on top of her

in -- he was dressed in shorts. And she -- the action she described was

him lying on top of her so that his genitals would be in contact through

the clothing with her buttocks and him moving back and forth in a

motion, and she also described feeling his erect penis through his shorts

while he was doing that.

A portion of the audio recording of Johnson’s interview of S.D. was admitted

at trial as an excited utterance. In the portion of the audio recording admitted as

evidence, S.D. said that Appellant would lie on top of her while she was lying on

her stomach. She reported that Appellant would move “up and down” on her while

lying on top of her and that she could feel his penis when he was doing this even

though he was wearing shorts. S.D. stated to Detective Johnson that Appellant’s

penis was “hard” and that he did this “three times.”

At the time of trial, S.D. was twenty years old. She was reluctant to testify

against Appellant. The trial court issued a writ of attachment to secure her

attendance at trial after she did not voluntarily comply with a subpoena. S.D. told

the prosecutors prior to trial that she wanted the charges against Appellant dropped.

When asked why she wanted the charges dropped, S.D. testified: “Because I felt like

everything was fine in our family and I just wanted to just move on with my life and

just, you know, be happy again.” S.D. was hesitant to testify that Appellant had

sexual contact with her. S.D. initially testified at trial that Appellant’s penis was not

hard on the occasions that he lay on top of her. She also testified that it was possible

that what had happened was an accident or simply wrestling with Appellant. When

confronted with the statements she made to Detective Johnson, however, S.D.

testified that she told him the truth about what had occurred. S.D. also testified that

she remembered telling Detective Johnson that she felt Appellant moving up and

down when he was on top of her and she felt his hard penis on her “butt.”

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Double Jeopardy and Sufficiency of the Evidence

In his first issue, Appellant asserts a double jeopardy claim. He argues that

he suffered multiple punishments for the same offense. Specifically, Appellant

contends that he was convicted of two identical offenses “arising out of only one

possible fact scenario.” He asserts that there was evidence about only one occasion

when Appellant’s penis came into contact with S.D.’s buttocks. He supports this

contention with the following comment that one of the prosecutors made during a

bench conference concerning the State’s compliance with Brady v. Maryland, 373

U.S. 83 (1963).

But the meeting I had with [S.D.] there was no recantation. She

confirmed everything she told to the detective was the truth. And then

she went over, step by step, with me what it is the defendant had done

to her.

She made it clear that there were three separate occasions. And

that what we had misinterpreted from her interview was that the penis

to the buttocks happened three times and that it really only happened

once. The first time was him getting in bed and holding her close and

the second time was the penis to the buttocks and the third time was

kissing and breast touching.

The Fifth Amendment’s Double Jeopardy Clause provides that no person shall

“be subject for the same offence to be twice put in jeopardy of life or limb.” U.S.

CONST. amend. V. Among the protections afforded by this provision is the

protection from multiple punishments for the same offense. Langs v. State, 183

S.W.3d 680, 685 (Tex. Crim. App. 2006). There are two variations of a multiple-

punishments claim: (1) where there are both a greater and a lesser included offense

and the same conduct is punished twice—once for the basic conduct and a second

time for that conduct plus more—and (2) where the same criminal act is punished

under two distinct statutes and the legislature intended the conduct to be punished

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only once—such as causing a single death and being charged with both intoxication

manslaughter and involuntary manslaughter. Id.

The State contends that Appellant waived his double jeopardy claim by not

raising it in the trial court. We disagree. The State is correct that a double jeopardy

claim generally must be raised in the trial court to preserve the error for appellate

review. See Gonzalez v. State, 8 S.W.3d 640, 643–46 (Tex. Crim. App. 2000).

Because of the fundamental nature of the double jeopardy protections, however, a

double jeopardy claim may be raised for the first time on appeal or on collateral

attack if two conditions are met: (1) the undisputed facts show that the double

jeopardy violation is clearly apparent on the face of the record and (2) when

enforcement of the usual rules of procedural default serves no legitimate state

interest. Langs, 183 S.W.3d at 687; Gonzalez, 8 S.W.3d at 643.

Appellant’s double jeopardy claim is essentially a challenge to the sufficiency

of the evidence to show that he committed indecency with a child by sexual contact

as alleged in Counts Two and Three of the indictment on multiple occasions. He

asserts that, at most, the evidence only shows that he committed the act on one

occasion. Based upon this assertion, he contends that two convictions for the same

act constitute a double jeopardy violation. “A claim regarding sufficiency of the

evidence need not be preserved for review at the trial level and is not waived by the

failure to do so.” Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim. App. 2001);

accord. Proctor v. State, 967 S.W.2d 840, 842 (Tex. Crim. App. 1998).

Additionally, the grounds for considering a double jeopardy claim for the first time

on appeal also apply to Appellant’s claim because the alleged violation would be

clearly apparent on the face of the record and no legitimate state interest would be

served by not considering Appellant’s claim. Gonzalez, 8 S.W.3d at 643.

We review a sufficiency of the evidence issue, regardless of whether it is

denominated as a legal or factual claim, under the standard of review set forth in

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Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912

(Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—

Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of the evidence

in the light most favorable to the verdict and determine whether any rational trier of

fact could have found the elements of the offense beyond a reasonable doubt.

Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.

2010). When conducting a sufficiency review, we consider all the evidence admitted

at trial, including pieces of evidence that may have been improperly admitted.

Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s role as the

sole judge of the witnesses’ credibility and the weight their testimony is to be

afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder’s

duty to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319;

Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we

presume that the factfinder resolved the conflicts in favor of the prosecution, and we

defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.

Appellant bases his “one possible factual scenario” contention on S.D.’s live

trial testimony. In this regard, S.D. testified that she only remembered one time that

Appellant lay on top of her. Appellant supports this contention with the comment

made by the prosecutor during a bench conference. We first note the prosecutor’s

comment does not constitute evidence, particularly given the fact that it was during

a bench conference when the jury was not present in the courtroom. Appellant’s

evidentiary contention ignores the other items of evidence pointing to Appellant

committing the alleged act on multiple occasions. In the portion of S.D.’s statement

to Detective Johnson that was played for the jury, she stated that Appellant lay on

top of her three times in her room with his penis making contact with her buttocks.

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She stated in the interview that “he was moving the three times I caught him.”

Detective Johnson also testified that the charged conduct happened “on more than

one occasion” in describing what S.D. had reported to him.

“A person who commits more than one sexual act against the same person

may be convicted and punished for each separate and discrete act, even if those acts

were committed in close temporal proximity.” Aekins v. State, 447 S.W.3d 270, 278

(Tex. Crim. App. 2014). The events that S.D. reported to Detective Johnson

constitute evidence that Appellant committed the alleged act on multiple occasions.

The fact that Appellant challenges the admissibility of these items of evidence does

not affect our review of the sufficiency of the evidence because we are required to

consider both admissible and inadmissible evidence under the applicable standard

of review. Furthermore, it was within the jury’s province to resolve any conflicts

between S.D.’s live trial testimony and the events she reported to Detective Johnson,

and we presume that the jury resolved those conflicts in support of the verdict.

Viewing the evidence in the light most favorable to the verdict, we conclude that a

rational trier of fact could have found beyond a reasonable doubt that Appellant

committed the offense of indecency with a child by sexual contact on more than one

occasion as alleged in Counts Two and Three. We overrule Appellant’s first issue.

Appellant also challenges the sufficiency of the evidence in his second issue.

A person commits the offense of indecency with a child by sexual contact if the actor

touches any part of the body of a child, including touching through clothing, with

the actor’s anus, breast, or any part of the actor’s genitals with the intent to arouse

or gratify the sexual desire of any person. PENAL § 21.11(a)(1), (c)(2). As noted

previously, Counts Two and Three of the indictment alleged that Appellant

committed the offense of indecency with a child by sexual contact “by touching the

buttocks of [S.D.] with his male sexual organ with the intent to arouse or gratify the

sexual desire of [Appellant].” Appellant contends that the evidence was insufficient

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to establish that he engaged in the alleged contact with the intent to arouse or gratify

his sexual desire. He additionally contends that the evidence does not establish that

sexual contact actually occurred because both S.D. and Appellant were clothed at

the time of the incidents and because S.D. was covered with a blanket.

In a prosecution for indecency with a child, the defendant’s specific intent to

arouse or gratify his sexual desire can be inferred from his conduct, his remarks, and

all surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim.

App. [Panel Op.] 1981); Moore v. State, 397 S.W.3d 751, 754 (Tex. App.—San

Antonio 2013, no pet.). Intent can be inferred from conduct alone, and no oral

expression of intent or visible evidence of sexual arousal is necessary. Scott v. State,

202 S.W.3d 405, 408 (Tex. App.—Texarkana 2006, pet. ref’d). Further, a

complainant’s testimony alone is sufficient to support a conviction for the offense

of indecency with a child. Moore, 397 S.W.3d at 754; Connell v. State, 233 S.W.3d

460, 466 (Tex. App.—Fort Worth 2007, no pet.).

Much like with his contentions in support of his first issue, Appellant bases

his challenge to the intent element on S.D.’s live testimony wherein she testified

that, although she could feel Appellant’s penis, it was not “hard.” He also points out

S.D.’s trial testimony wherein she testified that Appellant was possibly wrestling

with her and that she did not believe his conduct was sexual in nature. In her reports

to Detective Johnson and Nurse Jordan, S.D. stated that she could feel Appellant’s

erect penis when he climbed on top of her. Furthermore, S.D. testified that she “did

tell the detective his penis was hard” and that her report to Detective Johnson was

correct. Additionally, S.D. reported to Detective Johnson that Appellant was

moving up and down when the contact occurred and that it happened on more than

one occasion. Viewing the evidence in the light most favorable to the jury’s verdict,

we conclude that a rational trier of fact could have found beyond a reasonable doubt

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that Appellant possessed the specific intent to arouse or gratify his sexual desire

when engaging in the alleged conduct.

Appellant acknowledges that the definition of sexual contact includes

“touching through clothing.” PENAL § 21.11(c). He contends that sexual contact

could not have occurred in this case, however, because there were multiple layers of

clothing or fabric separating Appellant’s penis and S.D.’s buttocks. We disagree.

The statutory definition of sexual contact simply provides that it may occur through

clothing—without reference to the number of layers of clothing or fabric separating

the perpetrator and the victim. In Resnick, the court stated that the essence of the act

of touching “is to perceive by the sense of feeling.” Resnick v. State, 574 S.W.2d

558, 560 (Tex. Crim. App. [Panel Op.] 1978). Irrespective of the number of layers

of fabric between S.D. and Appellant, S.D. testified that she could feel Appellant’s

penis on her buttocks when he lay on top of her. A rational trier of fact could have

found beyond a reasonable doubt that Appellant touched her buttocks with his penis

based upon her testimony that she felt his penis touching her buttocks. We overrule

Appellant’s second issue.

Hearsay

Appellant’s third, fourth, and fifth issues concern the admissibility of out-of-

court statements. We review a trial court’s decision to admit evidence under an

abuse of discretion standard. Wall v. State, 184 S.W.3d 730, 743 (Tex. Crim. App.

2006). We will uphold an evidentiary ruling on appeal if it is correct on any theory

of law that finds support in the record. Gonzalez v. State, 195 S.W.3d 114, 126 (Tex.

Crim. App. 2006). We initially address Appellant’s fourth issue in which he

challenges the admission of portions of an audio recording of an interview with S.D.

Detective Johnson was the first witness called by the State. S.D. had made

reports concerning allegations of sexual assault against Appellant, and CPS referred

those allegations to Detective Johnson. The allegations concerned events that had

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occurred a couple of months before he received the report. In September 2007,

Detective Johnson met with S.D. in the school administration office. Although S.D.

initially thought that Detective Johnson was there to talk with her about a missing

cell phone, after he introduced himself and explained why he was there, he

interviewed her about the sexual assault allegations.

Detective Johnson testified that S.D. became emotional at times during the

interview and that he had to stop the interview a couple of times because S.D. began

to cry. He answered affirmatively to the following question: “[D]id it seem to you

that her emotional state and her breakdown was directly related to the information

and the reliving of what she was telling you?” He additionally testified, “I felt like

her emotional state was directly attributed to the trauma that she had experienced.”

Detective Johnson made an audio recording of the interview.

At trial, the prosecutor sought to admit the audio recording under the excited

utterance exception to the hearsay rule as applied in McCarty. See McCarty v. State,

257 S.W.3d 238, 241–42 (Tex. Crim. App. 2008). The trial court recessed the trial

in order to evaluate the applicability of the McCarty factors. The trial court and

Appellant’s counsel engaged in a lengthy discussion regarding the applicability of

the McCarty factors, especially the factor that related to the elapsed time between a

startling condition and an earlier event to which a declarant testified. Relying on

McCarty, the trial court admitted a seven-minute portion of S.D.’s recorded

statement under the excited utterance exception to the hearsay rule. Id.

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);

see Sandoval v. State, 409 S.W.3d 259, 281 (Tex. App.—Austin 2013, no pet.).

Hearsay is inadmissible except as provided by statute or the Rules of Evidence.

TEX. R. EVID. 802; see Sandoval, 409 S.W.3d at 281. Excited utterances are

admissible as an exception to the hearsay rule. See Sandoval, 409 S.W.3d at 284.

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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); see Sandoval, 409 S.W.3d at 284.

The spontaneous nature of the statement is the main factor to be considered

when a court determines the admissibility of an excited utterance. Tezeno v. State,

484 S.W.2d 374, 379 (Tex. Crim. App. 1972). The declarant must have made the

statement before the excitement that is caused by the startling event or condition has

abated. Sandoval, 409 S.W.3d at 284. This is so because the excited utterance

exception is based on an assumption that the person making the statement is not then

capable of the kind of reflection that would enable her to fabricate the information

about which she testifies. Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App.

2005). The trustworthiness of the statement is founded on the fact that it is the event

that speaks through the person and not merely the declarant relating the event.

Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). And, it is not

necessary that the startling event be based on the original offense; the startling event

may be a subsequent event, if it is in itself a startling event. Sandoval, 409 S.W.3d

at 285. To be an excited utterance, the statement must be triggered by the shocking

or startling event. Id.

In McCarty, the court laid out three conditions for a court to consider when it

determines the admissibility of a hearsay statement under the excited utterance

exception:

(1) the “exciting event” should be startling enough to evoke a truly

spontaneous reaction from the declarant; (2) the reaction to the startling

event should 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, 257 S.W.3d at 241.

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Appellant contends that the holding by the Austin Court of Appeals in

Sandoval is controlling regarding the admissibility of S.D.’s interview with

Detective Johnson under the excited utterance exception to the hearsay rule.

Appellant’s reliance on Sandoval is understandable because this case was transferred

to us from the Third Court of Appeals in Austin pursuant to an order of the Texas

Supreme Court under the authority of Section 73.001 of the Texas Government

Code. TEX. GOV’T CODE ANN. § 73.001 (West 2013). In accordance with Rule 41.3

of the Texas Rules of Appellate Procedure, we are required to follow the precedent

of the Austin Court of Appeals “unless it appears that the transferor court itself

would not be bound by that precedent.” TEX. R. APP. P. 41.3, comment to 2008

change.

The out-of-court statement that the trial court admitted as an excited utterance

in Sandoval was made by a fifteen-year-old victim to her fifteen-year-old cousin.

Sandoval, 409 S.W.3d at 270–74. Upon hearing the defendant’s name mentioned

during a conversation, the victim remarked that she did not like the defendant and

asked her cousin, “Can I tell you something?” Id. at 285. After telling her cousin

that she “was scared to tell anybody,” the victim told her cousin that the defendant

had sexually assaulted her by forcing her to have sexual intercourse with him. Id. at

270, 285. The cousin testified that, when the victim made the statement, she

appeared to be under the emotions of what had happened to her. Id. at 285.

The Austin court held that the victim’s statement to her cousin was not an

excited utterance. Id. at 285–86. It determined that the record did not support a

finding that the victim was still dominated by the excited state produced by the attack

that had occurred three or four months earlier or that the mention of the defendant’s

name was the type of startling or shocking event contemplated by the excited

utterance exception. Id. The court noted that the victim’s age, the delay, her

reluctance, and her contemplation of consequences all weighed against the

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spontaneity requirement for the excited utterance exception to apply. Id. (citing

Apolinar, 155 S.W.3d at 186). The court concluded that the victim’s disclosure to

her cousin was a narrative of a painful event, not an excited utterance. Id. at 286.

The sponsoring witness of the out-of-court statement in Sandoval was a

minor. Thus, the admissibility of the statement was based upon a secondhand

description from another minor about the victim’s emotional state at the time of the

statement. In the case now before us, the sponsoring witness was a veteran police

detective. Furthermore, the trial court had S.D.’s actual voice to review in order to

determine whether or not her statement to Detective Johnson constituted an excited

utterance. We also have S.D.’s actual words to consider in determining whether the

trial court abused its discretion when it determined that the admitted portion of her

statement constituted an excited utterance. Accordingly, there are procedural

differences between the facts in this appeal and those in Sandoval. Nevertheless, we

conclude that the admitted portion of S.D.’s recorded interview, as in Sandoval,

constituted a narrative of a painful event rather than an excited utterance.

Our task of reviewing the seven-minute portion of the audio recording

admitted into evidence has not been easy. The portion admitted into evidence was

not transcribed in the reporter’s record either time it was played for the jury.

Additionally, the initial recording supplied to our court with the reporter’s record did

not contain the portion of the interview played for the jury. We have subsequently

obtained a complete copy of the interview, and we have carefully listened to the

seven-minute portion played for the jury. Given the recess called by the trial court

prior to determining that a portion of the recorded interview was admissible, we

assume that the trial court also had the opportunity to listen to the interview prior to

determining that it was admissible as an excited utterance.

In the admitted portion of the interview, Detective Johnson asked

approximately twenty-six questions, several of which were leading. The admitted

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portion of the interview can be broken down into two chronological sections for

purposes of our analysis. In the first section, S.D. answered Detective Johnson’s

questions in a calm and direct manner with no hesitation. The admitted portion

(starting at the 23:58 mark) began with Detective Johnson asking S.D. whether

Appellant had touched her vagina or bottom or whether he had asked her to touch or

look at the private parts of his body. She replied “no” to both of these questions.

Detective Johnson then asked S.D. about her report to a school nurse that

“[Appellant] would lay on the bed with you and push his body against you.” S.D.

agreed that this report was “true.” Detective Johnson then asked S.D. to tell him

about what she had reported to the school nurse. She then gave a description of

Appellant lying on top of her while she lay on her stomach in her bed.

The second section of the admitted portion of the interview begins at

approximately the 25:50 mark of the interview. Detective Johnson asked S.D. what

part of Appellant’s body was touching her body. She replied by saying, “His penis,

like I can feel it, and I told my mom this.” S.D. began crying at this point in the

interview. Detective Johnson then asked S.D., “And when you feel his penis,

describe that to me what you are feeling?” S.D. replied, “Very uncomfortable.”

Detective Johnson then asked, “How specifically does his penis feel?” After

approximately a forty-five second pause, S.D. replied, “Very uncomfortable, like he

is not supposed to be doing that.” S.D. appeared to continue to cry during this pause

as evidenced by Detective Johnson asking her if she wanted him to find some tissue

and asking her if she was okay. Detective Johnson then asked S.D., “Was his penis

soft or was his penis hard?” Within a few seconds, S.D. replied, “[I]t was hard.”

Detective Johnson then asked S.D. if Appellant was “just laying there or was he

doing more than just laying on top of you?” S.D. asked Detective Johnson for

clarification by responding, “Like, was he moving?” After Detective Johnson

replied in the affirmative, S.D. replied, “Like I caught him three times doing that.”

15

S.D. paused during the middle of this response, and she appeared to be continuing

to cry. Detective Johnson then asked S.D. for clarification as to how Appellant was

moving. S.D. initially replied that Appellant was moving “up and down.” However,

she did not complete her response until approximately one minute later after

Detective Johnson prompted her to provide a response after which she stated that

Appellant “would go like up on me and then he would go back down.” The admitted

portion of the interview concluded with Detective Johnson asking clarification

questions about what Appellant might have said during these events. S.D. also stated

that, on at least one occasion, she called for her mom to come to her room.

As noted previously, S.D. answered the questions during the first section of

the admitted portion of the recorded interview quickly, directly, and calmly. None

of the questions during the first section appeared to create an emotional state that led

to an immediate, impulsive, or spontaneous response. Accordingly, the trial court

abused its discretion when it concluded that the first section of the recorded interview

constituted an excited utterance. See McCarty, 257 S.W.3d at 241–42; Apolinar,

155 S.W.3d at 186–87; Zuliani, 97 S.W.3d at 595–96.

The second section of the admitted portion of the recorded interview presents

a more difficult question because of the emotions exhibited by S.D. in her responses

to Detective Johnson’s questions. The difficulty arises when we consider the

statement of the Court of Criminal Appeals in Zuliani that “[t]he critical

determination is ‘whether the declarant was still dominated by the emotions,

excitement, fear, or pain of the event’ or condition at the time of the statement.” 97

S.W.3d at 596 (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App.

1992) overruled on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim.

App. 1994)). There is no question that S.D. was dominated by emotions during the

second section of the interview. However, emotional domination alone is not

sufficient to constitute an excited utterance. Immediately after the sentence from

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Zuliani quoted above, the Court of Criminal Appeals wrote: “Stated differently, a

reviewing court must determine whether the statement was made ‘under such

circumstances as would reasonably show that it resulted from impulse rather than

reason and reflection.’” Zuliani, 97 S.W.3d at 596 (quoting Fowler v. State, 379

S.W.2d 345, 347 (Tex. Crim. App. 1964)). The court subsequently noted in Apolinar

that the excited utterance 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, 155 S.W.3d at 186 (citing Zuliani, 97

S.W.3d at 595).

As we noted above, most of S.D.’s critical responses in the second section of

the recorded interview were preceded by relatively long pauses. When we consider

the McCarty factors to which we have already referred, we are constrained to hold

that the long pauses in S.D.’s responses during the second section of the reported

interview preclude a determination that her statements “resulted from impulse rather

than reason and reflection.” Zuliani, 97 S.W.3d at 596 (quoting Fowler, 379 S.W.2d

at 347) (internal quotation mark omitted). While her responses were obviously

emotional, they were not spontaneous enough to avoid the possibility of fabrication

as required by McCarty. See McCarty, 257 S.W.3d at 241. Accordingly, the trial

court abused its discretion when it determined that the admitted portions of the audio

recording of the second section of S.D.’s interview with Detective Johnson were

admissible under the excited utterance exception to the hearsay rule.

On appeal, the State contends that the admitted portion of S.D.’s recorded

interview was not hearsay under TEX. R. EVID. 801(e)(1)(B) because it contained a

prior consistent statement that was offered to rebut a claim of recent fabrication. We

disagree. Rule 801(e)(1)(B) gives substantive, non-hearsay status to prior consistent

statements of a witness proffered to rebut an express or implied charge against the

declarant of recent fabrication or improper influence or motive. Hammons v. State,

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239 S.W.3d 798, 804–05 (Tex. Crim. App. 2007). There are four requirements that

must be met for prior consistent statements to be admissible: (1) the declarant must

testify at trial and be subject to cross-examination; (2) there must be an express or

implied charge of recent fabrication or improper influence or motive of the

declarant’s testimony by the opponent; (3) the proponent must offer a prior statement

that is consistent with the declarant’s challenged in-court testimony; and (4) the prior

consistent statement must be made prior to the time that the supposed motive to

falsify arose. Id. In this case, Appellant did not challenge S.D.’s in-court testimony.

Instead, Appellant challenged S.D.’s initial reports of the allegations as being

fabricated. Accordingly, S.D.’s report to Detective Johnson was not a prior

consistent statement when compared to her in-court testimony. If anything, it was a

prior inconsistent statement when compared to her in-court testimony.

Appellant’s third issue also concerns the excited utterance exception.

Appellant asserts that the trial court erred when it allowed Nurse Jordan to testify

about the allegations that S.D. reported to her. As noted previously in this opinion,

Nurse Jordan provided a summation of the details that S.D. had related to her during

their meeting. The prosecutor prefaced the offer of this testimony with the following

questions asked of Nurse Jordan:

Q. Now, when she started, at some point did she tell you about

the actual acts that her stepfather had done to her?

A. Yes.

Q. Okay. And when she started to tell you about those acts, did

you notice any, sort of, change in her emotional state?

A. It was difficult for her to speak of these things. She was -- her

voice became quieter, her head, kind of -- you know, she -- it was

difficult. You know, it was not a conversation about, what are you

going to have for lunch, it was a hard conversation about uncomfortable

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things. And she became quiet, there were a few tears. She wasn’t

sobbing, but definitely emotional during that time.

Q. Okay.

A. And, you know, it was -- it’s a difficult conversation, it was

difficult for her.

Q. So would you say that the stress of having to talk about those

events was causing her some emotional distress?

A. Yes.

Q. And you could visibly see that?

A. Yes, there were tears.

Unlike the situation involving the audio recording of S.D.’s actual voice, the

trial court only had Nurse Jordan’s secondhand account of S.D.’s emotional state at

the time she reported the allegations. Although Nurse Jordan testified that “there

were a few tears,” S.D. was not sobbing. We conclude that the trial court abused its

discretion by admitting Nurse Jordan’s summation as an excited utterance in the

absence of evidence that S.D. was dominated by emotion at the time of the report,

coupled with the delay between the conduct and her statement about it to

Nurse Jordan.

The State also contends that S.D.’s report to Nurse Jordan was admissible

under TEX. R. EVID. 803(4) as a statement for the purpose of medical diagnosis or

treatment. We disagree. In order for a statement to be admissible under Rule 803(4),

it must be pertinent to diagnosis or treatment. Taylor v. State, 268 S.W.3d 571, 591

(Tex. Crim. App. 2008). Nurse Jordan testified that she visited with S.D. because a

school counselor who had started talking with S.D. had another appointment.

Nurse Jordan took over for the school counselor “to finish the conversation to have

19

my arm around her shoulder kind of thing.” There simply was no testimony that

S.D. made the statement to Nurse Jordan for the purpose of medical diagnosis or

treatment.

The State additionally contends that Nurse Jordan’s summation either was not

hearsay under TEX. R. EVID. 801(e)(1)(B)—because it was a prior consistent

statement offered to rebut a claim of recent fabrication—or was admissible under

TEX. R. EVID. 803(24) as a statement against interest. We will address these

additional contentions below.

Appellant’s fifth issue addresses the admissibility of Detective Johnson’s

summation of the allegations that S.D. reported to him. The State sought to offer the

summation as “information that [Detective Johnson] used for going to the next step

in [his] investigative process.” Appellant cites Sandoval for the proposition that

Detective Johnson’s summation exceeded the permissible bounds of out-of-court

statements about which a police officer may testify as “information acted upon” in

his investigation. Sandoval, 409 S.W.3d at 281–83. We agree. It is not a violation

of the hearsay rule for a trial court to admit out-of-court statements that are offered

to explain the reason that a defendant became a suspect in an investigation. Id. at

281–82. An officer should be allowed to testify as to the reasons for his behavior,

his presence, and his conduct so that his involvement does not appear to have been

simply by happenstance. Schaffer v. State, 777 S.W.2d 111, 114–15 (Tex. Crim.

App. 1989). The statement, however, must be a general one and not one in which

the officer gives specific details of the information received. Sandoval, 409 S.W.3d

at 282.

The police officer in Sandoval gave a “complete account” of the victim’s

description of the sexual assault as “information he acted upon.” Id. at 282–83. On

appeal, the court determined that the officer’s testimony was not merely a

generalized description of possible criminality that explained how the defendant

20

came to be a suspect but, rather, contained specific details about the alleged sexual

assault that he obtained from interviewing the victim and her mother and from

reading their written statements. Id. at 283–84. The court held that the officer’s

testimony constituted hearsay evidence that went far beyond the permissible general

description of information received about possible criminality and, instead, provided

specific details and descriptions of the defendant’s involvement in the sexual assault.

Id. at 284. As was the case in Sandoval, Detective Johnson’s summation of S.D.’s

allegations against Appellant also provided specific details rather than a generalized

description of criminality. Accordingly, his summation of S.D.’s allegations

exceeded the permissible bounds of background information from a police officer.

As was the case with Nurse Jordan’s summation of S.D.’s report to her, the

State contends that Detective Johnson’s summation was either a prior consistent

statement offered to rebut a claim of recent fabrication under Rule 801(e)(1)(B) or a

statement against interest under Rule 803(24). We disagree with both contentions.

We previously have determined that S.D.’s report to Detective Johnson was not

admissible under Rule 801(e)(1)(B) as a prior consistent statement of a witness. The

same rationale applies to S.D.’s statement to Nurse Jordan.

The State cites Glover v. State, 102 S.W.3d 754, 766 (Tex. App.—Texarkana

2002, pet. ref’d), for the proposition that S.D.’s reports to Nurse Jordan and

Detective Johnson were admitted as statements against S.D.’s social interest. Glover

involved a fourteen-year-old girl who disclosed to her mother that she was a willing

participant in sexual relations with a twenty-six-year-old man. 102 S.W.3d at 766.

The court concluded that the statement was against the victim’s social interest

because it would “subject her to disgrace in the eyes of her mother.” Id. Unlike the

declarant in Glover, S.D. was not a willing participant in the instances of Appellant’s

sexual contact. Accordingly, S.D.’s reports of Appellant’s conduct would not have

21

made her “an object of hatred, ridicule, or disgrace” as was the case in Glover. See

TEX. R. EVID. 803(24); Glover, 102 S.W.3d at 766.

We have determined that the admitted portions of S.D.’s recorded interview

and Nurse Jordan’s and Detective Johnson’s summations of S.D.’s reported

allegations constituted hearsay and that no offered exceptions exist to allow for their

admission. We now must determine whether the admission of this hearsay evidence

was harmless.

The violation of an evidentiary rule that results in the erroneous admission of

evidence constitutes nonconstitutional error. See TEX. R. APP. P. 44.2(b); Geuder v.

State, 142 S.W.3d 372, 376 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). As

nonconstitutional error, we must review the erroneous admission under Rule 44.2(b)

of the Texas Rules of Appellate Procedure. TEX. R. APP. P. 44.2(b); see Campos v.

State, 317 S.W.3d 768, 779 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (the

erroneous admission of a hearsay statement constitutes nonconstitutional error).

When an appellate court applies Rule 44.2(b), it must disregard a nonconstitutional

error unless the error affects the appellant’s substantial rights. Barshaw v. State, 342

S.W.3d 91, 93 (Tex. Crim. App. 2011). An appellate court should not overturn a

criminal conviction for nonconstitutional error “if the appellate court, after

examining the record as a whole, has fair assurance that the error did not influence

the jury, or influenced the jury only slightly.” Id. (quoting Schutz v. State, 63 S.W.3d

442, 444 (Tex. Crim. App. 2001) (internal quotation mark omitted). Our focus is

“not on whether the outcome of the trial was proper despite the error, but whether

the error had a substantial or injurious effect or influence on the jury’s verdict.” Id.

at 93–94; See Kinsey v. State, No. 11-12-00102-CR, 2014 WL 2459690, at *12 (Tex.

App.—Eastland May 22, 2014, no pet.) (mem. op., not designated for publication).

The appellate court is to review the entire record in an effort to determine the effect

22

that the wrongfully admitted evidence had on the verdict. Barshaw, 342 S.W.3d at

93–94; Kinsey, 2014 WL 2459690, at *12.

When we determine the effect that the wrongfully admitted evidence had on

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

evidence that supports 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. Further, we may consider the trial court’s instructions

to the jury, the theories advanced in the case by the parties, closing arguments, jury

voir dire, and the extent to which the State emphasized the error. Id.; see also Kinsey,

2014 WL 2459690, at *12.

A conviction must be reversed for nonconstitutional error if the reviewing

court has grave doubt that the result of the trial was free from the substantial effect

of the error. “Grave doubt” means that, in the judge’s mind, the question is so evenly

balanced that he feels that he is in virtual equipoise as to the harmlessness of the

error. Barshaw, 342 S.W.3d at 94. If such a grave doubt exists as to a defendant,

then the defendant must prevail. Id.

We initially note that Nurse Jordan’s and Detective Johnson’s summations

referenced the allegation that Appellant touched S.D.’s breast. These portions of the

summations obviously did not influence the jury because Appellant was acquitted of

that charge. However, the remaining portions of the summations contained the same

allegations that were referenced in the inadmissible portion of S.D.’s recorded

interview that was played for the jury.

Any error in admitting these items of hearsay is harmless if other evidence

proving the same facts was properly admitted elsewhere. Brooks v. State, 990

S.W.2d 278, 287 (Tex. Crim. App. 1999); Land v. State, 291 S.W.3d 23, 28 (Tex.

App.—Texarkana 2009, pet. ref’d). Accordingly, we focus on the remaining

evidence offered at trial. We primarily focus our analysis on S.D.’s trial testimony.

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On direct examination, S.D. testified that Appellant “would come to [her] room and

lay next to [her]. You know, I would tell him to leave.” This report, coupled with

the report to her mother about Appellant hugging her and touching her breast, led to

S.D. moving to her aunt’s house for the summer. When S.D. moved back to her

mother’s house, she requested her mother to put a lock on her door for the following

reason: “That way I have my own privacy. And I’ll feel safer for me, you know, for

my protection.” However, S.D. also admitted telling Detective Johnson that the lock

was placed on her door because of Appellant and that this statement to Detective

Johnson was “the truth.”

The following dialogue occurred when the prosecutor asked S.D. whether

Appellant ever made her feel uncomfortable:

A. Just the times that, you know, where -- he came in my room

when my mom wasn’t home and, you know, he would come in. You

know, I would tell him, “I don’t want you in my room. If my mom’s

not here or anybody’s not in the house, I would like it if you would just

leave my room.” I said that that would make me feel better. And he

would leave my room until my mom got back home from work, which

would probably [be], like, around 3:00 or 2:00.

Q. Okay. Was there ever a time where he laid in bed with you?

A. Just once.

Q. What did he do that time, that you remember? What did he

do?

A. He would lay next to me and hug me. And, you know, I would

tell him -- I said, “I don’t feel right. Can you just leave my room,

please?” And, you know, he would leave my room. Every time I would

tell him leave my room, he would leave my room.

Q. So there were times where he would come get in your bed and

hug you in your bed?

24

A. Not all the time.

Q. Were there sometimes that he did that?

A. Sometimes, but, like, not all the time.

S.D. subsequently described one instance when Appellant lay on top of her in

her bedroom. She initially testified at trial that she felt Appellant’s penis, but she

denied that it was hard. However, she confirmed that she felt Appellant moving up

and down on her body and that she felt his penis on her “butt.” S.D. also testified

that “it happened” and that what she told the police was true “[o]n certain parts.”

S.D.’s direct examination concluded with her admitting that she told Detective

Johnson that Appellant’s penis was hard and that her statement to that effect was

true.

Although S.D. testified that she only remembered one instance of Appellant

touching her with his penis, she also testified that she told the truth during her police

interview. However, we have held that the only evidence of what she actually told

Detective Johnson about any criminal conduct constituted inadmissible hearsay.

Although S.D. testified that there was more than one time that Appellant got in her

bed and hugged her, that testimony does not pertain to the charged criminal conduct.

Accordingly, when we eliminate the audio recording and Nurse Jordan’s and

Detective Johnson’s summations, there was no other evidence from any other source

to establish that Appellant committed the conduct on more than one occasion; he

was convicted for committing such conduct on more than one occasion. Further, the

jury, on more than one occasion, heard the audio recording and S.D.’s voice on it.

Additionally, in argument, the prosecutor emphasized the contents of the

inadmissible portions of the audio recording. Under this record, we cannot say that

we have fair assurance that the error did not influence the jury or that the error

25

influenced the jury only slightly. Accordingly, we sustain Appellant’s third, fourth,

and fifth issues.

Opinion Testimony

In his sixth issue, Appellant argues that the trial court erred when it allowed

Detective Johnson to offer his opinion regarding Appellant’s role in S.D.’s absence

at the start of trial. In light of our disposition of Appellant’s third, fourth, and fifth

issues, we need not address Appellant’s sixth issue.

This Court’s Ruling

We reverse the judgments of conviction on Counts Two and Three and remand

the cause to the trial court for a new trial on those two counts.

JOHN M. BAILEY

JUSTICE

May 14, 2015

Publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.

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