Thomas Alan Auld v. the State of Texas ( 2022 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-21-00079-CR
THOMAS ALAN AULD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 115th District Court
Upshur County, Texas
Trial Court No. 18889
Before Morriss, C.J., Stevens and van Cleef, JJ.
Opinion by Chief Justice Morriss
OPINION
An Upshur County jury found Thomas Alan Auld guilty of eight counts of indecency
with a child by contact.1 Of the eight counts, six accused Auld of touching Kate’s2 genitals, and
two accused him of causing her to touch his genitals. Auld now appeals, alleging various errors.
We modify the judgments by changing the recited degree of offense for each count from a first-
degree felony to a second-degree felony to accurately reflect the nature of the convictions. We
affirm the modified judgments, because (1) sufficient evidence supports Auld’s convictions, (2)
Auld did not preserve his complaints about admission of extraneous-offense evidence at
guilt/innocence, (3) Auld failed to preserve his complaints about two witnesses’ testimony, (4)
admission of witness testimony under the excited-utterance exception to the rule against hearsay
was harmless error, and (5) Auld has not established ineffective assistance of counsel.
(1) Sufficient Evidence Supports Auld’s Convictions
Admittedly, much of the evidence on the eight charges against Auld was not a model of
clarity. Most came from Kate, the victim. The State filled in added evidence from Sexual
Assault Nurse Examiner (SANE) Misty Edzards; Kate’s stepfather, Charles; Kate’s close friend
and a minor, Cassie; and Kate’s close friend and relative, Autumn, also a minor.
Kate was twelve years old at trial. When she was ten or eleven years old, Kate often
spent the night or weekend with Autumn, who was related to both Auld and Kate. Kate’s trial
1
See TEX. PENAL CODE ANN. § 21.11. After proof of a prior felony conviction, Auld was sentenced to life
imprisonment on each count.
2
We use pseudonyms, and only vaguely reference any connection of Auld to “Kate” to protect the identities of the
complainant and any other minors. See TEX. R. APP. P. 9.10.
2
testimony described multiple incidents in which she was alone with Auld and he engaged in
illegal sexual contact with her. Over the course of Auld’s predations on Kate, Auld lived in three
different houses, and those houses were used to identify the timing of events relevant to the
charges. According to Kate, Auld lived in houses on Crawford and Trinity Streets and, for a
couple of weeks, lived in Kate’s family’s house in Bettie.
From Kate’s testimony, it appears that most of Auld’s charged behavior occurred on
evenings he drove Kate home after she had visited Autumn overnight or on weekends. Kate
described an occasion when Auld drove her home from his house on Trinity Street and suggested
they play a game, dare or die, which Kate played with her cousins.3 Kate elected for Auld to
choose a “dare.” Auld’s dare to her was for her to touch his penis. Auld unbuttoned his pants,
“grabbed” Kate’s hand, placed it on his erect penis, and “moved” Kate’s hand on his penis.
When Kate was reluctant to choose a dare, Auld elected to touch her. When asked how Auld
touched her on that occasion, Kate stated that he put his hand on the skin beneath her underwear
in her “private area” and moved his hand. He also touched her “other private area,” under her
shirt. Auld engaged in those contacts while driving, stopping only when he reached “the last
corner” before Kate’s house. Auld warned Kate not to tell anyone for two expressed reasons:
first, because he would get in trouble and, second, because Kate would never get to see Autumn
again.
3
According to Kate, “Dare would be like the usual dare that you would play in truth or dare and die would be
something worse than that.” However, there was no threat of violence. “[I]t was just straight up dares,” as Kate
explained.
3
Kate testified that she would stay overnight with Autumn on almost all occasions when
Autumn stayed with Auld. The pattern during that time frame was for Autumn to be with Auld
every other weekend. When it was time for Kate to go home, she said that usually her mother or
stepfather would pick her up. Kate said that, “most of the time,” her mother retrieved her from
the house on Trinity, while Auld would usually take her when he was living on Crawford Street.
When Auld took her home, it was “mainly” during the day, but sometimes in the evening.
When he took her home during the day, no untoward conduct occurred. But there were
nighttime trips, too.
When Auld took Kate home at night, the two were always alone in his car. Kate testified
that “about half the time” Auld took her home at night, he would engage in sexual contact with
her.
Kate’s stepfather, Charles, testified that Auld lived at the house on Crawford Street
“[p]robably about seven or eight months” sometime between late 2017 and 2018. Around early
2019, Auld moved to Trinity Street where he lived with his mother. Charles told the jury that,
when Auld lived at the house on Crawford, he usually brought Kate back after staying the night
or weekend with Autumn. “Sometimes” Auld returned Kate during the daytime, with other
children in the car. When Auld brought Kate home at night, they were alone in the car.
Sometime later, Auld came to live with Kate, her mother, and her stepfather, during which time
Auld would occasionally babysit Kate and her siblings and had opportunity to be alone with
them or her.
4
The last time Auld touched her was before the COVID pandemic began in 2020. About a
year after the last touching, she told her friend Cassie, who urged Kate to tell her parents. Kate
delayed any report, as she was worried that, if she told her mother, that might interrupt her
stepfather’s plans to adopt her. Cassie told Kate’s mother a few days later.
Auld challenges the sufficiency of the evidence to support eight allegations of indecency
by contact. The indictment’s counts alleged as follows:
I. Auld touched Kate’s genitals on or around March 1, 2019;
II. Auld caused Kate to touch Auld’s genitals on or around March 15, 2019;
III. Auld touched Kate’s genitals on or around April 1, 2019;
IV. Auld caused Kate to touch Auld’s genitals on or around April 15, 2019;
V. Auld touched Kate’s genitals on or around May 15, 2019;
VI. Auld touched Kate’s genitals on or around June 1, 2019;
VII. Auld touched Kate’s genitals on or around June 15, 2019;
VIII. Auld touched Kate’s genitals on or around August 1, 2019.[4]
Kate could not recall when Auld lived in a particular house. As the State is not bound by the
indictment’s dates,5 we will look for specific evidence that could rationally satisfy each count.
4
Each count alleged the other statutory requisites, that Kate was a child under the age of seventeen and that Auld
engaged in each act of sexual contact with the intent to arouse or gratify his sexual desire. Cf. TEX. PENAL CODE
ANN. § 21.11(c). Auld does not challenge the sufficiency of the evidence on those elements.
5
“The State is not bound by the date alleged in the indictment and may prove that an offense was committed before,
on, or after the date alleged, so long as the date proved is a date anterior to presentment of indictment and the
crime’s occurrence is not so remote as to be barred by limitation.” Scoggan v. State, 799 S.W.2d 679, 680 n.3 (Tex.
Crim. App. 1990). Auld does not challenge those elements. His appellate argument is that the evidence does not
prove beyond a reasonable doubt eight separate criminal acts.
5
When we review the sufficiency of the evidence, we are to determine whether, “viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Witcher v. State, 638
S.W.3d 707, 709–10 (Tex. Crim. App. 2022); see Williamson v. State, 589 S.W.3d 292, 297
(Tex. App.—Texarkana 2019, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010) (plurality op.); Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hartsfield v.
State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d)). This leaves the jury the
responsibility “to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Witcher, 638 S.W.3d at 710. The fact
finder may and should draw “reasonable inferences” from the evidence but may not engage in
“mere speculation.” Id.
“Legal sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically correct jury charge.” Williamson, 589 S.W.3d at 298 (quoting Malik v. State,
953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). “The ‘hypothetically correct’ jury charge is ‘one
that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase
the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and
adequately describes the particular offense for which the defendant was tried.’” Id. (quoting
Malik, 953 S.W.2d at 240).
“In our review, we consider ‘events occurring before, during and after the commission of
the offense and may rely on actions of the defendant which show an understanding and common
design to do the prohibited act.’” Id. (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
6
App. 2007) (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985))). “It is not
required that each fact ‘point directly and independently to the guilt of the appellant, as long as
the cumulative force of all the incriminating circumstances is sufficient to support the
conviction.’” Id. (quoting Hooper, 214 S.W.3d at 13). “Circumstantial evidence and direct
evidence are equally probative in establishing the guilt of a defendant, and guilt can be
established by circumstantial evidence alone.” Id. at 297 (citing Ramsey v. State, 473 S.W.3d
805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13 (citing Guevara v. State, 152
S.W.3d 45, 49 (Tex. Crim. App. 2004))). “Further, ‘we must consider all of the evidence
admitted at trial, even if that evidence was improperly admitted.’” Id. (quoting Fowler v. State,
517 S.W.3d 167, 176 (Tex. App.—Texarkana 2017), rev’d in part by 544 S.W.3d 844 (Tex.
Crim. App. 2018)) (citing Moff v. State, 131 S.W.3d 485, 489–90 (Tex. Crim. App. 2004)).
The jury, as “the sole judge of the credibility of the witnesses and the weight to be given
their testimony[, could] ‘believe all of [the] witnesses’ testimony, portions of it, or none of it.’”
Id. (quoting Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App. 2014)). “We give ‘almost
complete deference to a jury’s decision when that decision is based on an evaluation of
credibility.’” Id. (quoting Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008)). The
jury is permitted to draw any reasonable inference from the evidence as long as it is supported by
the record. See Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). Contradictions
in the evidence are reconciled by the jury and will not result in reversal so long as there is
enough credible testimony to support the verdict. Bowden v. State, 628 S.W.2d 782, 784 (Tex.
Crim. App. 1982). Additionally, the jury may use “common sense and apply common
7
knowledge, observation, and experience gained in the ordinary affairs of life when giving effect
to the inferences that may reasonably be drawn from the evidence.” Wawrykow v. State, 866
S.W.2d 87, 88–89 (Tex. App.—Beaumont 1993, pet. ref’d).6
One difficulty the State has on this record is that, though it asked Kate frequently how
many times Auld drove her home in the dark, alone with her, Kate invariably answered that she
did not remember.7
Based on the testimony at trial, Auld had access to Kate on occasions connected to three
different houses: (1) the Crawford house where he lived for a time, (2) the Trinity house where
he lived with his mother at a different time, and (3) the Bettie house where Kate lived with her
parents. Kate visited Autumn at the Crawford and Trinity houses. Auld visited the Bettie house
and, for a short time at the end of the sequence of events, lived there. Auld had access to Kate at
each location and, as described below, when he drove her home from either the Crawford house
or the Trinity House. Though our analysis below ties particular events to specific numbered
charges, that connection is for convenience, not because any specific event was required to be
tied to any particular numbered count against Auld. For our purposes here, the State’s obligation
6
Earlier in 2022, we were reversed by the Texas Court of Criminal Appeals in a case in which, when we were
charged to assess the legal sufficiency of the evidence to support a conviction, we put too much focus on the lack of
precision of certain expressions used in testimony concerning the “30 or more days” element of the offense of
continuous sexual abuse. See Witcher, 638 S.W.3d at 709–10. In reversing our holding that the evidence was
insufficient to establish that timing element, the court, in a 5-4 opinion, held that phrases like “give or take” and
“around that time” can be legally sufficient to establish the timing element, when the other evidence contains
enough margin in the referenced time periods to support a finding of at least thirty days, in spite of some of the
testimony being inexact. The question before us, therefore, is not whether the evidence is particularly clear or
technically precise; the question put to us is whether sufficient evidence supports each of the eight convictions. We
believe that, using the Witcher standard noted above, it does.
7
Remember that Kate was twelve years old at the time of her trial testimony and ten to eleven years old at the time
of the alleged abuse.
8
to support its eight counts was to provide sufficient evidence of six instances in which Auld
touched Kate’s genitals and two in which he caused her to touch his penis, regardless of how the
instances might be matched to the numbered counts. From the following, we conclude that the
State met its obligation.
According to Kate’s testimony, Auld initiated a game of dare or die with Kate one
particular evening while driving her home from the Trinity house, during which Auld made Kate
touch his penis and he touched her inside her genital area, skin on skin. This evidence supports
Auld’s convictions under counts I and II.
Later, the State engaged in the following dialogue with Kate:
[State]: Let me ask it this way, [Kate], from the times that [Auld] took
you home from the Crawford home in Gilmer, were there times that he touched in
your genitals area?
[Kate]: Yes, sir.
....
[State]: Did he have you touch his genitals, penis, in the car?
[Kate]: Yes, sir.
[State]: If I asked you those same questions about the Trinity Street home,
would your answers be the same?
[Kate]: Yes, sir.
(Emphasis added.)
Given the State’s use of the word “times,” the foregoing testimony describes more than
one instance of Auld touching Kate’s genitals when Auld took her home from the Crawford
house. In response to this questioning, Kate further acknowledged that Auld caused her to touch
9
his penis on the drive home from the Crawford house. From this evidence, the fact-finder could
reasonably and logically conclude that there were at least two instances in which Auld touched
Kate’s genitals when he took her home from the Crawford house and that there was at least one
instance in which Auld caused Kate to touch his genitals on the drive home from the Crawford
house.
As referenced above, the State posed the same questions to Kate as to the Trinity Street
house and received the same affirmative answer. Kate had already testified that Auld touched
her genitals and that he caused her to touch his penis on the way home from the Trinity Street
house. But from this additional testimony, the jury could have rationally and logically concluded
that there were at least two instances in which Auld touched Kate’s genitals when he took her
home from the Trinity house and that there was at least one instance in which Auld caused Kate
to touch his genitals on the drive home from the Trinity house.
Putting together the foregoing evidence as to the Crawford and Trinity houses, there is
legally sufficient evidence to support Auld’s convictions on counts I through VI, two of her
touching him and four of him touching her.
For a brief period, Auld lived in Kate’s Bettie home. During that time, in the bathroom
of Kate’s home, Auld touched Kate’s “private parts” inside her clothing. Since Kate had
previously described her “private parts” as her genital area, this provides legally sufficient
evidence supporting another instance of Auld touching her genitals, in a situation not involving a
car trip, thus providing evidentiary support for count number VII, that is, one more count of him
touching her.
10
As to count VIII, there are at least two ways a rational jury could have found evidentiary
support to convict Auld on that count. We set out below two paths to evidentiary support for
count VIII, that is, one more count of him touching her.
Count VIII, Path One (at Bettie house): During the re-direct examination of Kate, the
State questioned Kate to provide a summary of her previous testimony. Kate had the following
exchange with the State:
[State]: Okay. [Kate], what you’ve told this jury under oath about what
[Auld] did to you, did those things happen?
[Kate]: Yes, sir.
[State]: Do you have any doubt in your mind that those things happened?
[Kate]: No, sir, no doubt.
[State]: And I’m not going to go back through all of those detailed
difficult questions with you again, but, [Kate], when, as you’ve told the jury under
oath that [Auld] would touch you, would that be on the drive home alone in the
car?
[Kate]: Yes, sir.
[State]: Would it also be at times when he would babysit you at your
home in Bettie?
[Kate]: Yes, sir.
(Emphasis added.)
In her interview with SANE Edzards, as reflected in the body diagram in evidence, Kate
used “up here” to indicate her breast area. When indicating her genitals, she used “down there”
and “private parts.” As to the male body diagram, Kate referred to male genitals as “down there”
11
and “private part.” Additionally, during her interview with Edzards, Kate made the following
statements,
[Auld] messed with me, touch me in places he shouldn’t touch me. Down here
and up here (points between legs and breast). We were in the car and play truth
or dare or some game or something. He would rub me with his hand outside my
clothes and inside me and he dared me and threatened me to never see [Autumn]
again if I didn’t. In the front of my private part. A few times at his house and a
few times at his house while he was babysitting us. He made me touch his private,
he would make me play with it with my hand.[8]
(Emphasis added). Edzards also testified that Kate told her these events happened while Kate
was ten and eleven years old, in 2019, and that Kate said these events happened “several times.”
Kate’s testimony that Auld touched her “at times” at the Bettie house suggests more than
one incident occurred. Additionally, the touching that Kate was being asked about was the
improper touching Kate originally described during her direct examination. With respect to the
touching incident that occurred at the Bettie house, Kate testified on direct examination that Auld
touched her “private parts,” which she used to refer to her genital area. Similarly, Kate testified
that, when she was alone in the car with Auld, he would touch her private area under her
underwear and her other private area on her chest. Based on this evidence, the fact-finder could
reasonably infer that, on the other occasion on which Auld improperly touched Kate at the Bettie
house, he did so in the same manner, that is, by touching both her chest and her genitals. This
testimony supports at least one additional instance of Auld touching Kate’s genitals, thus
providing evidentiary support for count number VIII.
8
The punctuation in this excerpt is Edzards’s.
12
Count VIII, Path Two (going home from Trinity house): The State also introduced other
evidence that the jury could have considered in arriving at its decision as to count VIII.
On cross-examination, Kate testified that there were some occasions that Auld took her
home (alone) at night during the time he lived at the Trinity Street house. Kate testified that
Auld took her home from the Trinity Street house at night “less than 10 times.” Logically, that,
standing alone, could include just zero or one time, but contextually can be rationally understood
to mean two to nine times. And about “half the time” he took her home at night, he “messed
with her,” which the jury contextually could have understood rationally as touching her in at
least her genital area. Later, on cross-examination, Kate affirmed that Auld took her home about
twice a month for some unstated number of months and that a few of those times were at night.
Charles testified that, during a period of about seven or eight months, Auld lived at the Trinity
Street address. So, the above evidence could support rational conclusions by the jury that (1)
Auld took Kate home fourteen to sixteen times (two times per month of living at the Trinity
Street address), (2) “a few of” those times were at night, and (3) about half of those nighttime
trips he “messed with her.” The jury could conclude from that evidence that Auld touched
Kate’s genital area at least three times when driving her home from Trinity Street. That provides
legally sufficient evidence that Auld touched Kate’s genitals at least three times when traveling
home from the Trinity house. From that math, this combination of evidence provides legally
sufficient evidence of another touching by Auld of Kate’s genital area, beyond the two detailed
earlier in our analysis, supporting count VIII.
13
As a result, we find that the evidence was sufficient to support the jury’s verdicts on
counts I through VIII. We, therefore, overrule this point of error.
(2) Auld Did Not Preserve His Complaints About Admission of Extraneous-Offense Evidence
at Guilt/Innocence
Auld also complains that the trial court erred by admitting extraneous-offense evidence
during the State’s case-in-chief. Over Auld’s objection, the State was allowed to present
testimony from Annabelle,9 who told the jury that, when she was around ten or eleven years old,
she, her mother, and her sister lived with Auld and his wife. Annabelle estimated Auld to have
been about thirty years old at the time. She testified about an occasion where Auld invited her,
but not her older sister who was also home at the time, into his bedroom to play a game. In the
bedroom, Auld suggested that they play truth or dare. When Annabelle asked Auld, “Is it true
you have a secret, and if so, what?” Auld leaned close to her and told her that he “got caught
masturbating in the locker room by a bunch of cheerleaders.” Annabelle said Auld “added extra
emphasis on the word masturbating.” She did not know what that word meant, but “just knew
that it wasn’t a normal word.”
On appeal, Auld argues that this evidence was not admissible because the State did not
provide notice of its intent to use extraneous-offense evidence at trial. “On timely request by a
defendant in a criminal case, the prosecutor must provide reasonable notice before trial that the
prosecution intends to introduce” extraneous-offense evidence in the State’s case-in-chief. TEX.
R. EVID. 404(b)(2). Auld has directed us to nowhere in the record where he requested pretrial
9
A pseudonym.
14
notice of extraneous offenses. Thus, the State was not obligated to provide Auld with notice of
Annabelle’s testimony. See Espinoza v. State, 853 S.W.2d 36, 39 (Tex. Crim. App. 1993).10
The State also urged admission of Annabelle’s testimony under Rule 405(b).11 However,
none of the various trial objections made by Auld complained of admission of Annabelle’s
testimony under that Rule. Hence, Auld did not preserve this matter for our review.
The State announced its intent to offer Annabelle’s testimony under the authority of
Rules 404(b)(2) and 405(b). Auld objected (1) that he was not prepared for Annabelle’s
testimony, though he “knew of her identity,” and (2) that Annabelle was “not accusing [Auld] of
any sexual impropriety, therefore, I think it’s too prejudicial to bring her in for that purpose.”
Auld’s counsel told the court that he knew Auld played dare or die with Kate but did not think
Annabelle’s testimony would be relevant because it would not allege “sexual impropriety.” But
nothing in his objections alerted the court that he was challenging admission of Annabelle’s
testimony under Rule 405(b). See Lopez v. State, 615 S.W.3d 238, 259 (Tex. App.—El Paso
2020, pet. ref’d) (multiple objections, none on the basis or Rule 403, failed to preserve appellate
challenge on that specific ground); Glenn v. State, 475 S.W.3d 530, 534–35 (Tex. App.—
10
Espinoza, like Auld here, filed a pretrial request for discovery. And like Auld, Espinoza’s motion for discovery
made no mention of Rule 404(b) and was not ruled on by the trial court. See Espinoza, 853 S.W.2d at 38–39.
Espinoza held that, “when a defendant relies on a motion for discovery to request notice pursuant to Rule 404(b), it
is incumbent on him to secure a ruling on his motion in order to trigger the notice requirements of that rule.” Id. at
39. As in Espinoza, Auld’s “discovery motion did not operate as such a request.” See id.When this matter was being argued, the State told the trial court that it had provided a supplemental witness
list to Auld before voir dire, which was conducted nine days before trial. The State told the court, “We actually
hand-delivered that to the defendant’s counsel table before we picked the jury.” That supplemental witness list,
however, is not in the appellate record. Further, during the arguments over this matter, Auld told the court that the
defense “was aware of” Annabelle’s identity but “wasn’t prepared for this particular witness.”
11
“When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or
trait may also be proved by relevant specific instances of the person’s conduct.” TEX. R. EVID. 405(b).
15
Texarkana 2015, no pet.) (“‘shotgun objections’ generally citing many grounds for the objection
without argument preserve nothing for appeal”); Berry v. State, 813 S.W.2d 636, 639 (Tex.
App.—Houston [14th Dist.] 1991, pet. ref’d) (“shotgun” objections do not preserve specific error
complaints). Because Auld did not tell the trial court that he specifically opposed Annabelle’s
testimony under Rule 405(b), he did not preserve this argument for our review.
We overrule this point of error.
(3) Auld Failed to Preserve His Complaints About Two Witnesses’ Testimony
Two of Auld’s points of error present arguments not properly presented to the trial court
and thus not preserved for our review. See TEX. R. APP. P. 33.1. In his third point of error, Auld
claims Upshur County Investigator Linda Roberts was allowed to testify essentially that Auld
was guilty, but this does not comport with Auld’s objection to the trial court. Auld’s fourth point
of error argues that Roberts and therapist Robin Boyles were allowed to testify that Kate was
truthful in her allegations. Regarding Roberts’s testimony, Auld’s trial objection does not
comport with his appellate point, and he made no objection to Boyles’s testimony.
During Roberts’s testimony, the State asked her about her investigation and whether she
ever interviewed Auld. Roberts said that, by the time she was aware of Kate’s allegations, Auld
was living in Pennsylvania. Despite multiple requests, Roberts was not able to speak with Auld
or get him to return to Texas. The State established that Roberts had interviewed many suspects
in her career.
Auld’s appeal complains of the following exchange:
[The State]: And those that -- those suspects that are accused of offenses,
are they more willing to come and speak to you, in your opinion?
16
[Roberts]: Depending on what they’re being accuse[d] of.
[The State]: What if they didn’t do it?
[Roberts]: If they didn’t do it, they’re going to come talk to me.
On appeal, Auld claims that this statement by Roberts—that if a suspect “didn’t do it” they
would come speak with her—amounted to Roberts giving an (impermissible) opinion that Auld
was guilty.12
Auld made no objection to this line of questioning or Roberts’s answer. To preserve a
complaint for our review, a party must first present to the trial court a timely request, objection,
or motion stating the specific grounds for the desired ruling if not apparent from the context.
TEX. R. APP. P. 33.1(a)(1). Further, the trial court must have ruled on the request, objection, or
motion, either expressly or implicitly, or the complaining party must have objected to the trial
court’s refusal to rule. TEX. R. APP. P. 33.1(a)(2). We overrule this point of error.
The other point of error we cover in this section argues that two state witnesses—
investigator Roberts and therapist Boyles—who counseled Kate after the child made known the
abuse she endured—were allowed to testify that Kate was truthful in her allegations.
Early in her investigation, Roberts watched the interview that Kate gave to the local
Child Advocacy Center (CAC). Regarding that interview, the State asked Roberts, “But based
on what you witnessed as an investigator and what you observed [in the interview], did you
formulate an opinion as to whether or not the children appeared to be truthful in the interview?”
12
Here, Auld cites Boyde v. State, 513 S.W.2d 588, 590–93 (Tex. Crim. App. 1974), where prosecutorial
misconduct—continuously eliciting improper testimony and asking impermissible questions—required reversal.
Boyde objected and secured instructions to disregard the various improprieties of the prosecution. Auld did not.
17
Roberts answered, “Yes.” Auld objected that that answer was “speculation” and that Roberts
had “no basis of knowledge of [Kate] before that, and would have nothing to form an opinion as
to whether she’s truthful or untruthful.”
Those objections do not comport to the argument on appeal. See Rogers v. State, 402
S.W.3d 410 (Tex. App.—Houston [14th Dist.] 2013), vacated on other grounds, 426 S.W.3d 105(Tex. Crim. App. 2014). Like Auld, Rogers complained on appeal that a witness was allowed to
testify to the truthfulness of a witness. Rogers, 402 S.W.3d at 417. However, his trial objection
was that the proffered testimony would be speculation. Id. Because he did not present the
appellate objection to the trial court, Rogers failed to preserve his claimed error for review. Id.;13
see also Broxton v. State, 909 S.W.2d 912 (Tex. Crim. App. 1995). There, a trial objection based
on Rule 403 of the Texas Rules of Evidence did not comport with, and therefore did not
preserve, the appellate complaint that the defense was denied an opportunity to present a defense
or deprived of its constitutional rights to due process and course of law. Id. at 918.
Auld’s complaint on appeal, that Roberts was improperly allowed to testify as to Kate’s
truthfulness, does not comport with his trial objection, that Roberts’s answer was only
speculative because she had no prior experience with Kate and thus no basis to determine if the
child was indeed being truthful.14
13
Here, the Rogers court cited Rule 33.1(a) of the Texas Rules of Appellate Procedure and Ibarra v. State, 11
S.W.3d 189, 197 (Tex. Crim. App. 1999).
14
We also point out that, after Auld’s objections were overruled, the only testimony elicited from Roberts was that
she had “formulate[d] an opinion based on what [she] observed.” Next, Roberts was asked if Kate ever accused any
other person as a perpetrator. The answer was that she had not, that Auld was the only subject of Kate’s
accusations.
18
Similarly, Auld urges a finding of error in the admission of testimony by counselor
Boyles to the effect she did not think Kate’s testimony had been coached. But because Auld
lodged no objection to the testimony, this issue is also not preserved.
The State asked Boyles if, based on her training and experience, she had any suggestion
Kate had been coached or manipulated to make her allegation against Auld. Boyles testified that
she had not. Auld did not object to that testimony and, thus, did not preserve it for our review.
These contentions of error are overruled.
(4) Admission of Witness Testimony Under the Excited-Utterance Exception to the Rule
Against Hearsay Was Harmless Error
Kate’s friend Cassie was allowed to testify to some details that Kate had told her about
Auld’s abusive acts. To Auld’s hearsay objection, the State argued that the testimony was
admissible under the excited-utterance exception to the rule prohibiting hearsay. See TEX. R.
EVID. 803(2). On appeal, Auld claims that Kate’s statements to Cassie did not qualify as an
excited utterance. We agree but find the error harmless.
Cassie testified that she was Kate’s best friend. She described an occasion when Kate
disclosed to her something about which Kate was upset. Describing Kate’s demeanor at the
time, Cassie said Kate “was nervous” and “was tearing up,” had a red face and was crying, and
seemed to be under stress, because “[s]he was fidgeting with her hair and her fingers a lot.”
Over Auld’s objection, Cassie was allowed to testify that Kate had told her about a time she was
staying overnight with Autumn at Auld’s house. On that occasion, Kate woke to find her pants
unzipped and “could feel -- felt what had happened.” Kate told Cassie “that a lot of times when
19
she went to [Autumn’s, Auld] . . . would touch her and would make her do the dirty with him.”
Cassie was not asked to, and did not, elaborate.
We are not convinced that Cassie’s reporting Kate’s statements met the requirements of
an excited utterance as contemplated by Rule 803(2) of the Texas Rules of Evidence. In
Aguilera v. State, 75 S.W.3d 60 (Tex. App.—San Antonio 2002, pet. ref’d), the court found error
where the trial court allowed hearsay testimony from the complainant “made nearly one year
after the date of the most recent allegation” of sexual abuse. Id. at 68. The record here does not
support a finding that, when Kate made her statement to Cassie, Kate “was still dominated by the
emotions, excitement, fear, or pain of the event’ or condition at the time of the statement.” See
Zuliani v. State, 97 S.W.3d 589, 596 (Tex. Crim. App. 2003) (quoting McFarland v. State, 845
S.W.2d 824, 846 (Tex. Crim. App. 1992)). Stated another way, there is no showing that Kate
“was excited or emotionally stimulated or in the grip of a shocking event so as to render the
statement a spontaneous utterance.” Mumphrey v. State, 155 S.W.3d 651, 658 (Tex. App.—
Texarkana 2005, pet. ref’d) (citing Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim. App.
2001)). It was error to admit Cassie’s testimony under the excited-utterance exception to the
hearsay rule.15
15
At trial, the State argued, alternatively, that Cassie’s testimony was admissible as Kate’s present sense impression.
The present-sense-impression exception has “relatively more strict requirements” than the “relatively more liberal
requirements of” the excited-utterance exception. McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008).
“Authors on the subject agree that the excited-utterance exception is broader than the present-sense-impression
exception.” Id. at 240. The record does not support a finding that, when Kate made her statement to Cassie, Kate
was “describing or explaining an event or condition made while [Kate] was perceiving the event or condition, or
immediately thereafter.” See TEX. R. EVID. 803(1). Thus, while this Court will uphold a “trial court’s ruling if it
was correct under any theory of law applicable to the case,” we cannot uphold the court’s ruling here. See State v.
Zuniga, 512 S.W.3d 902, 909 (Tex. Crim. App. 2017).
20
The erroneous admission of hearsay testimony is non-constitutional error and is
disregarded unless the defendant’s substantial rights were affected. See TEX. R. APP. P. 44.2(b);
Macedo v. State, 629 S.W.3d 237, 240 (Tex. Crim. App. 2021). “An error does not affect
substantial rights if the appellate court has ‘a fair assurance from an examination of the record as
a whole that the error did not influence the jury, or had but a slight effect.’” Macedo, 629
S.W.3d at 240 (quoting Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018)).
In making this determination, we consider: (1) the character of the alleged error
and how it might be considered in connection with other evidence; (2) the nature
of the evidence supporting the verdict; (3) the existence and degree of additional
evidence indicating guilt; and (4) whether the State emphasized the complained of
error.
Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018).
First, we conclude that Cassie’s testimony would have had significantly less impact on
the fact-finder than Kate’s. Cassie’s hearsay testimony was not very specific or detailed as to
elements of the charged offenses. She related Kate’s statements that, on one occasion, she woke
to find her pants unzipped and that, on several occasions, Auld, alone with her, would take her
home and “do the dirty.” Kate’s trial testimony was more specific about the ride-home
occasions. Kate did not testify about waking with unzipped pants,16 but she more specifically
described other instances of Auld touching her under her underwear.
Second and third, if the jury believed Kate’s testimony and that of the other witnesses
other than Cassie, and it apparently did, the evidence other than Cassie’s testimony was ample to
support all eight charges. We detailed the evidence above. See TEX. CODE CRIM. PROC. ANN.
In her statement to a SANE, she did mention waking one time to find her “pants unbuttoned,” though they were
16
buttoned when she went to sleep, but did not describe any touching that occurred on that occasion.
21
art. 38.07(b)(1) (Supp.). Viewed in the context of the rest of the evidence, Cassie’s hearsay
testimony was relatively insignificant. Kate’s descriptions of Auld’s conduct was substantially
more graphic and descriptive. Cassie’s testimony about what Kate told her was vague and
general in comparison to Kate’s testimony.
Fourth, the State did not emphasize Cassie’s hearsay testimony in argument. The State
mentioned Cassie only once in opening argument, which covers four pages of the reporter’s
record. Outlining the anticipated evidence, the State told the jury, “You’re going to hear who
[Kate] first told and you’re going to hear from that witness too.” During closing argument
(spanning twelve pages total, between closing and rebuttal closing) the State’s only reference to
Cassie’s testimony came in rebuttal: “[I]t takes a lot to tell your friend that you’re being hurt and
harmed by someone in a position of trust with you.”
In light of the above factors and other evidence, including but not limited to testimony
about Kate’s psychological state in the years following Auld’s abuse and inappropriate
comments he made to another young girl before, mentioned above, we believe the inadmissible
hearsay did not “influence the jury, or had but a slight effect.” Macedo, 629 S.W.3d at 240
(quoting Gonzalez, 544 S.W.3d at 373). We conclude that the erroneous admission of Cassie’s
hearsay testimony was harmless. We overrule this point of error.
(5) Auld Has Not Established Ineffective Assistance of Counsel
Auld also points to trial counsel’s failure to object to the testimony of Roberts and
Boyles, discussed above, and claims such failures amount to ineffective assistance of counsel.
We overrule this point of error, as the claim has not been established.
22
To prevail on a claim of ineffective assistance of counsel, the defendant must satisfy the
two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687–88 (1984). See
Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009) (orig. proceeding). A failure to
make a showing under either prong defeats a claim for ineffective assistance. Rylander v. State,
101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003). “As many cases have noted, the right to
counsel does not mean the right to errorless counsel.” Lampkin v. State, 470 S.W.3d 876, 896
(Tex. App.—Texarkana 2015, pet. ref’d) (citing Robertson v. State, 187 S.W.3d 475, 483 (Tex.
Crim. App. 2006)).
The first prong requires a showing “that counsel’s performance fell below an objective
standard of reasonableness.” Strickland, 466 U.S. at 688. This requirement can be difficult to
meet since there is “a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 689. “Trial counsel ‘should ordinarily be afforded an
opportunity to explain his [or her] actions before being’” found ineffective. Menefield v. State,
363 S.W.3d 591, 593 (Tex. Crim. App. 2012).
When an appellate record is silent on why trial counsel failed to take certain actions, the
appellant has “failed to rebut the presumption that trial counsel’s decision was in some way—be
it conceivable or not—reasonable.” Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007);
see Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). This is because allegations
of ineffectiveness “must ‘be firmly founded in the record.’” Bone v. State, 77 S.W.3d 828, 833
n.13 (Tex. Crim. App. 2002) (quoting Thompson, 9 S.W.3d at 813). When a party claims, for the
first time on direct appeal, that trial counsel was ineffective, the defendant must show that “under
23
prevailing professional norms,” Strickland, 466 U.S. at 688, no competent attorney would do
what trial counsel did or no competent attorney would fail to do what trial counsel failed to do,
Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). “The second Strickland prong,
sometimes referred to as ‘the prejudice prong,’ requires a showing that, but for counsel’s
unprofessional error, there is a reasonable probability that the result of the proceeding would
have been different.” Id. (quoting Strickland, 466 U.S. at 694). “‘A reasonable probability’ is
defined as ‘a probability sufficient to undermine confidence in the outcome.’” Id. (quoting
Strickland, 466 U.S. at 694). Consequently, to establish prejudice,
an applicant must show “that counsel’s errors were so serious as to deprive
defendant of a fair trial, a trial whose result was reliable.” [Strickland, 466 U.S.]
at 687 . . . . It is not sufficient for Applicant to show “that the errors had some
conceivable effect on the outcome of the proceeding.” Id. at 693 . . . . Rather, [he]
must show that “there is a reasonable probability that, absent the errors, the fact-
finder would have had a reasonable doubt respecting guilt.” Id. at 695 . . . .
The applicant has the burden to prove by a preponderance of the evidence
the ineffective assistance of counsel. Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999). Allegations of ineffectiveness must be based on the record,
and the presumption of a sound trial strategy cannot be overcome absent evidence
in the record of the attorney’s reasons for his conduct. Busby v. State, 990 S.W.2d
263, 269 (Tex. Crim. App. 1999). The reviewing court must look to the totality of
the representation, and its decision must be based on the facts of the particular
case, viewed at the time of counsel’s conduct so as to eliminate hindsight bias.
Strickland, 466 U.S. at 690, 104 S.Ct. 2052. In all cases, the “ultimate focus of
inquiry must be on the fundamental fairness of the proceeding.” Id. at 696, 104
S.Ct. 2052.
Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011).
Auld has failed to rebut the presumption that his trial counsel’s decisions were “in some
way—be it conceivable or not—reasonable.” Mata, 226 S.W.3d at 431. As regards Roberts’s
statement that, “[i]f they didn’t do it, they’re going to come talk to me,” Auld’s only authority
24
that this statement was objectionable is to Boyde. There, the instances of prosecutorial
misconduct were legion. In contrast, Auld complains of only this statement by Roberts.
Boyles’s statement, that she saw no indication that Kate’s statements and allegations had
been coached, may well have been objectionable,17 but this does not prove trial counsel’s
performance was deficient. See Tapia v. State, 933 S.W.2d 631, 634 (Tex. App.—Dallas 1996,
pet. ref’d) (failure to object to hearsay testimony, with a record silent as to counsel’s reasons and
decisions, did not establish deficient performance).
Even assuming without deciding that Auld could satisfy the deficient-performance prong
of Strickland, he has made no showing of a “reasonable probability that, absent the [purported]
errors, the fact[-]finder would have had a reasonable doubt respecting guilt.” Strickland, 466
U.S. at 695. We overrule this point of error.
(6) Conclusion
Each of the trial court’s judgments inaccurately describes the felony of conviction as a
first-degree felony, whereas indecency with a child by contact is a second-degree felony. See
TEX. PENAL CODE ANN. § 21.11(d). It is true that, because a prior felony conviction was proven,
Auld’s penalty was enhanced to the penalty range for a first-degree felony. See TEX. PENAL
CODE ANN. § 12.42(b). “[S]tatutes enhancing punishment ranges for the primary offense do ‘not
increase the severity level or grade of the primary offense.’” Bledsoe v. State, 480 S.W.3d 638,
642 n.11 (Tex. App.—Texarkana 2015, pet. ref’d) (quoting Ford v. State, 334 S.W.3d 230, 234
(Tex. Crim. App. 2011)).
17
See Yount v. State, 872 S.W.2d 706, 710–11 (Tex. Crim. App. 1993).
25
“This Court has the power to correct and modify the judgment of the trial court for
accuracy when the necessary data and information are part of the record.” Anthony v. State, 531
S.W.3d 739, 743 (Tex. App.—Texarkana 2016, no pet.) (citing TEX. R. APP. P. 43.2(b); Bigley v.
State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex.
App.—Dallas 1991, pet. ref’d)). “The authority of an appellate court to reform incorrect
judgments is not dependent on the request of any party, nor does it turn on the question of
whether a party has or has not objected in the trial court.” Id. (quoting Asberry, 813 S.W.2d at529–30).
We modify the judgments as to all counts to reflect that Auld was convicted of second-
degree felonies in each count. As modified, the trial court’s judgments and sentences are
affirmed.
Josh R. Morriss, III
Chief Justice
Date Submitted: April 13, 2022
Date Decided: July 21, 2022
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