Ronnie Michael Hopper v. State

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00476-CR
___________________________
RONNIE MICHAEL HOPPER , Appellant
V.
THE STATE OF TEXAS
On Appeal from the 30th District Court
Wichita County, Texas
Trial Court No. 60,066-A
Before Sudderth, C.J.; Womack and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
A jury found Appellant Ronnie Michael Hopper guilty of one count of
aggravated sexual assault of a child under the age of fourteen (Count One) and two
counts of indecency with a child by sexual conduct (Counts Two and Three). The
jury assessed his punishment at twenty-five years’ confinement for aggravated sexual
assault of a child and three years’ confinement for each count of indecency with a
child by sexual conduct. See Tex. Penal Code Ann. §§ 21.11(a)(1), 22.021(a). The trial
court sentenced Appellant accordingly, ordering that the sentences for Counts One
and Two run concurrently and that the sentence for Count Three run consecutively to
the other two sentences.
Appellant filed motions for new trial, which the trial court denied. Appellant
then timely filed a notice of appeal. In three points, he complains that the trial court
erred by excluding impeachment evidence, by admitting inadmissible hearsay, and by
refusing to give the jury an instruction to disregard after sustaining his objection to
evidence of extraneous conduct. Because we hold that the trial court did not
reversibly err, we affirm the trial court’s judgments.
2
BRIEF FACTS 1
Complainant A.R. (Amy) 2 reported to her seventh-grade math teacher that
Appellant, her stepfather, had sexually abused her. Then, Amy told her school
counselor that Appellant had sexually abused her that day and indicated by body
movements that he had touched her breasts and genitals. The counselor called Amy’s
mother (Mother) and directed Amy to use her cell phone to call Mother as well.
When Mother arrived at the school, she was very angry and accused Amy of lying
about the sexual abuse.
The day after Amy reported Appellant’s sexual abuse to her teacher and school
counselor, Amy gave a detailed account to a forensic interviewer about Appellant’s
sexually abusing her over a period of time, specifically describing the sexual abuse that
occurred the day before as well as another incident of sexual abuse that occurred
approximately a year earlier. A sexual assault nurse examiner (SANE) then performed
a medical examination of Amy. Amy told the SANE that Appellant had sexually
abused her the previous day, and the SANE found discoloration, tearing, and
abrasions on Amy’s genitals consistent with her account.
1
Appellant does not challenge the sufficiency of the evidence supporting his
convictions. We therefore omit a detailed statement of facts.
2
We use aliases to refer to the minor complainant, her peers, and her mother.
See 2d Tex. App. (Fort Worth) Loc. R. 7; see also Tex. R. App. P. 9.8(a), 9.10.
3
Amy engaged in self-harm, cutting her arms and thighs, after reporting the
sexual abuse. However, she had also engaged in cutting behavior before the alleged
sexual abuse began. Because of the post-outcry cutting, Amy stayed a week in a
mental health facility. Appellant was indicted for the sexual abuse prompting the
outcry as well as for the incident of sexual abuse occurring approximately a year
earlier that Amy relayed to the forensic interviewer.
DISCUSSION
I. Standard of Review
We review the admission or exclusion of evidence for an abuse of discretion,
which the record shows only when the ruling falls outside the zone of reasonable
disagreement. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016); Wall v.
State, 184 S.W.3d 730, 743 (Tex. Crim. App. 2006); Merrick v. State, 567 S.W.3d 359,
375 (Tex. App.—Fort Worth 2018, pet. ref’d). We will uphold the trial court’s correct
decision under any applicable legal theory even if the trial court gave a wrong or
incomplete reason for its ruling. De la Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim.
App. 2009); Qualls v. State, 547 S.W.3d 663, 675 (Tex. App.—Fort Worth 2018, pet.
ref’d).
We also review the denial of an instruction to disregard evidence for an abuse
of discretion. See Maldonado v. State, No. 10-11-00299-CR, 2013 WL 3847052, at
*8 (Tex. App.—Waco July 25, 2013, no pet.) (mem. op., not designated for
publication) (“[W]e will assume without deciding that the trial court abused its
4
discretion in failing to give an instruction to disregard” a question about a sawed-off
shotgun that was in evidence); Lambertz v. State, No. 01-00-00633 CR,
2002 WL 1821982, at *3 (Tex. App.—Houston [1st Dist.] Aug. 8, 2002, pet. ref’d); cf.
Stewart v. State, 221 S.W.3d 306, 310 (Tex. App.—Fort Worth 2007, no pet.) (holding
standard of review for refusing curative instruction to line of questioning is abuse of
discretion).
II. Impeachment
Appellant’s first point challenges the exclusion of impeachment evidence
against Amy. The trial court admitted Amy’s post-outcry mental health records at
trial. However, to support the defensive theory that Amy caused the injuries the
SANE found during the exam, Appellant also wanted the trial court to admit Amy’s
pre-outcry writings and cell-phone data that showed she had depression and suicidal
ideations, cut herself, and talked about sex with peers before the sexual abuse
prompting her outcry.
Amy’s pre-outcry writings that Appellant wanted the trial court to admit at trial
were in a binder Mother found in Amy’s bedroom after Amy moved out. The trial
court admitted “the portions of the [binder] . . . that talk[] about [Amy’s] feelings
towards [Appellant]” as Defendant’s Exhibit 3. However, the trial court excluded the
rest of the binder’s contents and all the cell-phone data.
As the Texas Court of Criminal Appeals has explained,
5
The Texas Rules of Evidence permit the defendant to cross-
examine a witness for his purported bias, interest, and motive without
undue limitation or arbitrary prohibition. Rule 404(b) permits the
defense, as well as the prosecution, to offer evidence of other acts of
misconduct to establish a person’s motive for performing some act—
such as making a false allegation against the defendant. Rule 613(b)
permits a witness to be cross-examined on specific instances of conduct
when they may establish his specific bias, self-interest, or motive for
testifying.
Johnson v. State, 490 S.W.3d 895, 910 (Tex. Crim. App. 2016). Generally, limiting a
defendant’s right to cross-examine a witness is within a trial court’s discretion.
Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009). For impeachment
evidence to be admissible, the defendant needs to establish a “causal connection or
logical relationship” between the evidence and the witness’s alleged bias or motive.
Johnson v. State, 433 S.W.3d 546, 552 (Tex. Crim. App. 2014) (citation and internal
quotation marks omitted); Tristan v. State, 393 S.W.3d 806, 810–11 (Tex. App.—
Houston [1st Dist.] 2012, no pet.). We recognize that this requirement cannot
impinge on a defendant’s right “to explore any plausible basis for witness bias.” Jones
v. State, 571 S.W.3d 764, 769 (Tex. Crim. App. 2019); Pabon v. State, No. 02-18-00517-
CR, 2019 WL 4122611, at *4 n.3 (Tex. App.—Fort Worth Aug. 29, 2019, no pet.)
(mem. op., not designated for publication).
A. The State’s Forfeiture Argument
The State argues that the trial court based its ruling excluding the proffered
evidence on Rule 403 and that Appellant forfeited his point by not discussing Rule
6
403 in his brief. The basis of the trial court’s ruling is unclear. We will therefore
address Appellant’s first point.
B. No Preservation of a Constitutional Claim
Appellant references the Sixth Amendment right to cross-examination in the
discussion of his first point, but, as the State argues, he did not raise a constitutional
challenge to the exclusion of the impeachment evidence in the trial court. To
preserve a complaint for our review, a party must have presented to the trial court a
timely request, objection, or motion stating the specific grounds, if not apparent from
the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); Thomas v. State,
505 S.W.3d 916, 924 (Tex. Crim. App. 2016). Because Appellant did not raise a Sixth
Amendment challenge to the exclusion of the impeachment evidence in the trial
court, he did not preserve a constitutional complaint for appeal. See Golliday v. State,
560 S.W.3d 664, 670–71 (Tex. Crim. App. 2018). We therefore overrule that portion
of his first point claiming the exclusion of the impeachment evidence violates his
Sixth Amendment right to cross-examination.
C. Sex-Related Cell-Phone Data
Appellant argues on appeal that the exclusion of Amy’s “sexually charged
conversations with her peers” barred him from asking her about other possible causes
of the discoloration, tearing, and abrasions on her genitals. The State argues that the
excluded sex-related evidence was irrelevant under Rule 401 to show that a source
7
other than Appellant was responsible for Amy’s injuries that the SANE observed and
that the evidence was alternatively inadmissible under Rule 412.
Evidence must be relevant to be admissible. Tex. R. Evid. 402. Evidence is
relevant when “it has any tendency to make a fact more or less probable than it would
be without the evidence[] and . . . the fact is of consequence in determining the
action.” Tex. R. Evid. 401. Rule 412 generally excludes evidence of an alleged sexual
assault victim’s past sexual conduct. Tex. R. Evid. 412(a), (e). However, evidence of
specific instances of an alleged victim’s past sexual behavior is admissible if its
probative value outweighs dangers of unfair prejudice and it
(A) is necessary to rebut or explain scientific or medical evidence
offered by the prosecutor;
(B) concerns past sexual behavior with the defendant and is offered
by the defendant to prove consent;
(C) relates to the victim’s motive or bias;
(D) is admissible under Rule 609; or
(E) is constitutionally required to be admitted.
Tex. R. Evid. 412(b).
Our review of Appellant’s Bill of Exceptions shows that Amy had the
following textual exchange with a peer:
[Amy:] So u like [Charlie’s] dick
[Faye:] Why[]?
[Amy:] Tell him the story about [Kay] Not actually getting raped
[Faye:] Not [Kay] when I was little I almost got raped
8
[Amy:] Trust me there’s a story I haven’t told you And I’m not
going to tell you
[Faye:] Ooh
The excluded cell-phone evidence also included a reposting of a “game” with listed
items such as: “Am I sexy or ugly,” “Kiss or fuck me,” “If I wanted to fuck would
you let me,” “How you feel about me (sexual wise),” “[W]ould u let me take your
virginity,” and “Could you see us dating.” The trial court further ruled that Appellant
could not cross-examine Amy about the excluded evidence. Appellant did not
question Amy in making his Bill.
None of the excluded cell-phone evidence bears a plausible link to the evidence
of trauma to Amy’s genitals. It is therefore not relevant. See Tex. R. Evid. 401; Snow
v. State, No. 02-17-00310-CR, 2019 WL 237734, at *9–10 (Tex. App.—Fort Worth
Jan. 17, 2019, no pet.) (mem. op., not designated for publication); Hale v. State,
140 S.W.3d 381, 396–97 (Tex. App.—Fort Worth 2004, pet. ref’d). Even if the
excluded evidence had general relevance under Rule 401, it would not be admissible
under Rule 412 in this instance because there is no link between it and any alleged
motive or bias on Amy’s part to falsely accuse Appellant of sexual abuse and it does
not rebut or explain the SANE’s testimony. See Tex. Rule Evid. 412(b)(2)(A), (C);
Snow, 2019 WL 237734, at *9; Alford v. State, 495 S.W.3d 63, 67 (Tex. App.—Houston
[14th Dist.] 2016, pet. ref’d) (holding the excluded evidence “does not explain how or
when [the complainant] sustained the hymen tear, let alone rebut the specific charge at
9
issue”); Stephens v. State, 978 S.W.2d 728, 734–35 (Tex. App.—Austin 1998, pet. ref’d)
(holding defendant failed to demonstrate “definite and logical link” between
complainant’s sexual behavior and alleged motive); Cooper v. State, 959 S.W.2d 682,
684–85 (Tex. App.—Austin 1997, pet. ref’d) (holding that evidence of complainant’s
sexual relations with boyfriend to prove she had fabricated accusation against
defendant to conceal her relationship with boyfriend was not sufficiently connected to
her motive to fabricate). Because we hold that the sex-related evidence is not relevant
and even if it had general relevance, it would not have been admissible under Rule
412, we also hold that the trial court did not abuse its discretion by excluding it. See
De la Paz, 279 S.W.3d at 344; Qualls, 547 S.W.3d at 675 (“If the trial court’s decision
to admit or exclude evidence is correct under any applicable legal theory, we will
uphold that decision even if the trial court gave a wrong or incomplete reason for its
ruling.”).
D. Evidence of Amy’s Mental Health
Other evidence in Appellant’s Bill of Exceptions shows that Amy experienced
loneliness, alienation, depression, and suicidal ideations and engaged in cutting
behavior. Appellant argues that he wanted to introduce this evidence to show that
Amy “was experiencing mental distress prior to the offenses as a basis for her bias or
motivation” and to rebut the State’s assertion that she suffered from mental trauma
because she had been sexually assaulted. He contends that the exclusion of the
mental health evidence left the jury with the false impression that Appellant was solely
10
responsible for the decline in Amy’s mental health. The State argues that the
challenged evidence is cumulative of evidence admitted without objection and
therefore any error in excluding it is harmless.
Initially, we note that Amy’s forensic interview indicated that the sexual abuse
began at least as early as “around spring break” of 2016, when Amy would have been
twelve or almost twelve years old. Those items in the exhibit that are dated are from
2017. While they may have shown Amy’s mental distress before her outcry and the
same-day sexual abuse that precipitated it, they were not relevant to show Amy’s
mental distress before the sexual abuse began. See Tex. R. Evid. 401, 402.
Regardless, other evidence admitted without objection showed Amy’s mental
state before the sexual abuse began and that other events contributed to her mental
distress. Mother testified that Amy began complaining “in sixth grade or so” about
other students bullying her because of her weight. Amy testified that she believed that
she had begun cutting herself when she was eleven years old and that she engaged in
cutting because of bullying at school, the sexual abuse, and the deterioration of her
relationship with Mother after the outcry. Further, Amy’s mental health records
admitted without objection as State’s Exhibit Number One provide:
• “The patient had a history of self-mutilation by laceration to relieve
stress dating back to the 6th grade.”
• “[Amy] stated that she was bullied in the 5th & 6th grade . . . .”
• “Patient reported that she has been cutting since the age of 11. She
stated that she started cutting because of the bullying . . . .”
11
Thus, the jury received ample evidence showing Amy’s mental health issues
before the sexual abuse began. Therefore, even if the trial court abused its discretion
by excluding Appellant’s proffered evidence—a holding we do not reach—any error
in excluding Amy’s writings and cell-phone data was harmless. See Tex. R. App. P.
44.2(b); Lindsay v. State, 102 S.W.3d 223, 230 (Tex. App.—Houston [14th Dist.] 2003,
pet. ref’d) (“When a trial judge excludes cumulative evidence, it is harmless error.”); cf.
Johnson v. State, 925 S.W.2d 745, 749 (Tex. App.—Fort Worth 1996, pet. ref’d)
(applying former Rule 81(b)(2) and concluding, “[A]ny error in excluding the evidence
would have had no impact on the outcome of the trial because the same evidence had
already been admitted without objection. Consequently, any error would be
harmless.”). We overrule Appellant’s first point.
III. Admission of Hearsay
In his second point, Appellant contends that the trial court abused its
discretion by admitting the counselor’s hearsay testimony that Mother “was very
adamant that [Amy] was lying [about the sexual abuse], that [Amy] was making it up,”
and the error was harmful because it inflamed the jury’s emotions against Mother,
who was a key witness for the defense. The State responds that (1) the trial court did
not abuse its discretion because Mother’s statement was an excited utterance, and
(2) even if the trial court abused its discretion, Mother’s statements and belief that
Amy lied about the sexual abuse were admitted without objection elsewhere,
rendering any error harmless. Without addressing the admissibility of the testimony,
12
we hold that Appellant forfeited his point by not timely and repeatedly objecting to
the counselor’s testifying about Mother’s hearsay statements alluding to the falsity of
Amy’s allegations, and in the interest of justice, we note that any error would have
been harmless.
Because it is a systemic requirement, this court should independently review
error preservation, and we have a duty to ensure that a claim is properly preserved in
the trial court before we address its merits. Darcy v. State, 488 S.W.3d 325, 327–
28 (Tex. Crim. App. 2016). To preserve a complaint for our review, a party must have
presented to the trial court a timely request, objection, or motion stating the specific
grounds, if not apparent from the context, for the desired ruling. Tex. R. App. P.
33.1(a)(1); Thomas, 505 S.W.3d at 924. A party must object as soon as the basis for the
objection becomes apparent. Tex. R. App. P. 33.1(a)(1); Tex. R. Evid. 103(a)(1);
Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002) (“We have consistently
held that the failure to object in a timely and specific manner during trial forfeits
complaints about the admissibility of evidence.” (citations omitted)); Dinkins v. State,
894 S.W.2d 330, 355 (Tex. Crim. App. 1995); Lozano v. State, 359 S.W.3d 790,
823 (Tex. App.—Fort Worth 2012, pet. ref’d); see Lackey v. State, 364 S.W.3d 837, 843–
44 (Tex. Crim. App. 2012) (discussing policies underlying the timeliness requirement).
Generally, a party must object each time the objectionable evidence is offered. Geuder
v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Martinez v. State, 98 S.W.3d 189,
193 (Tex. Crim. App. 2003); Clay v. State, 361 S.W.3d 762, 766 (Tex. App.—Fort
13
Worth 2012, no pet.). A trial court’s erroneous admission of evidence will not require
reversal when other such evidence was received without objection before or after the
complained-of ruling. Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App.
2010) (citing Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)); Lane v State,
151 S.W.3d 188, 193 (Tex. Crim. App. 2004); Qualls, 547 S.W.3d at 681.
In the State’s direct examination of the counselor, the following occurred:
Q. What do you recall about [Mother]’s demeanor when she arrived?
A. She was very angry. I would say she forcefully kinda pushed
the—I mean, it was abrupt opening the door into my office, did
not acknowledge anybody. She looked at [Amy] and—I want to
make sure that—she accused [Amy], she said, you know, you better not
be lying, was one thing, and you’re gonna make me choose sides,
either my husband or—you know, or [Amy]. She never—I think
at one time she did ask her, so when did this happen, and when
she told her, she said, well, that couldn’t happen because he was in bed
with me.
Q. Did you consider [Mother]’s demeanor to be appropriate given
the circumstances?
A. No.
Q. Did it concern you regarding [Mother]’s demeanor?
A. Yes.
Q. What did you do at that point recognizing with regard to your
concerns about the way that [Mother] was reacting to this?
A. It was not what—I’m sorry. It’s not what I would expect a
mother to do for their child, and it caught me off guard because
I’ve had students make reports in the past. I would contact the
parent and the parent would always be upset and console their
child, say what’s wrong. She didn’t do any of that. Sorry. She
14
even said at one time that—this really struck me—now I’m gonna
have to find another boyfriend.
Q. When [Mother] is saying these things to [Amy], how is [Amy]
reacting?
A. She’s crying. And I know [Mother] was like, you know, this is
serious, and she said, I know. And she just kept going on and was like,
he wouldn’t do that, he’s not that type of person.
....
Q. What happens next?
A. I asked—because, I mean, I was just kind of in shock. I thought
oh my gosh, what—you know, I was just so caught off guard.
And I asked [Amy], I said, could you just go right outside my
office. . . . And she went outside. And [former stepfather] was
still in there and [Mother], and I tried to talk to her and say, you
know, often, you know, it’s—it’s not somebody you would
suspect, you know. I’m trying to get her to at least consider that
this could have happened. She was very adamant that [Amy] was lying,
that [Amy] was making it up.
[Defense Counsel]: Your Honor, I object to hearsay.
THE COURT: Overruled.
[Emphasis added.]
As the above excerpt shows, the counselor testified to Mother’s statements
indicating that Amy was lying and that Mother disbelieved the allegations more than
once before Appellant objected. That objection therefore came too late to preserve
error. See Tex. R. Evid. 103(a)(1); Lozano, 359 S.W.3d at 823.
15
However, even if Appellant had preserved error in this instance, it would be
harmless. In addition to the counselor’s unobjected-to statements about Mother’s not
believing the allegations, the jury received the following unobjected-to evidence:
• Amy’s former stepfather testified that when Mother entered the
counselor’s office, “She looked right at [Amy] and said, ‘[Y]ou know
lying’s bad.’”
• Amy’s mental health records provide that Amy stated “that she does not
have a good relationship with . . . Mother because she called [Amy] a liar
when [Amy] told her about [Appellant] being sexually inappropriate with
her.”
• Mother testified that she “kinda figured that, you know, it wasn’t true”
when she went to the counselor’s office and that she “just walked in and
told [Amy] that telling a lie like this can ruin somebody’s life.”
• Mother also testified that “once [she] heard the allegations, [she] knew
they weren’t true.”
• Finally, Mother testified, “[M]y daughter is lying.”
Because all of these other statements indicating that Mother told Amy she was lying
and that Mother believed Amy was lying about Appellant’s sexually abusing her were
admitted for the jury’s consideration, any error in admitting the counselor’s testimony
that Appellant objected to was harmless. See Estrada, 313 S.W.3d at 302 n.29; Lane,
151 S.W.3d at 193; Qualls, 547 S.W.3d at 681. We overrule Appellant’s second point.
IV. Denial of Instruction to Disregard
In Appellant’s third point, he contends that the trial court erred by failing to
grant his requested instruction to disregard after sustaining his objection to extraneous
conduct. Before trial, the State gave notice of its intent to introduce evidence of
16
Appellant’s prior bad acts, including that in the summer of 2016, while Amy was
swimming with a friend, he touched Amy’s inner thigh and also repeatedly brushed
his body against her friend, making both girls uncomfortable. During trial, the trial
court held a hearing outside the jury’s presence about the admissibility of Appellant’s
extraneous acts. During the hearing, Amy testified that in addition to Appellant’s
touching her sexually, on three occasions, he had forced her to touch his penis. Amy
did not discuss the pool incident in the hearing. Nevertheless, at the end of the
hearing, the State told the trial court that it intended to offer “under No. 2 [of its
notice] . . . A through F” but was not offering “No. 3 in [its] notice at th[at] time.”
Appellant stated “no objection.” The trial court admitted “the matters . . . considered
in the hearing . . . for the purposes stated” and stated that the jury would be instructed
accordingly in the jury charge.
Numbers 2 and 3 of the State’s Notice of Intent to Introduce Prior
Convictions and/or Adjudications and/or Extraneous Offenses or Bad Acts provide:
2) In a meeting with [Amy] on June 29, 2018, she disclosed to
[prosecutors] the following:
a. That during the incident disclosed regarding the allegation of
aggravated sexual assault in this case that [Appellant] also
pulled her hand and made [her] touch his penis under his
clothing.
b. [Amy] further disclosed that prior to the incidents alleged in
Counts 1–3 of the indictment that a separate incident occurred
in which [Appellant] sat next to [her] on the couch while she
was watching a movie. [Appellant] then put his hand under
the blanket that she was using and under her clothes and
17
penetrated her vagina with his finger. The incident ended
when [Mother] called [Appellant] on his cell phone.
c. [Amy] further disclosed that during the incident alleged in
Count 3 of the indictment [Appellant] did insert his finger into
[her] vagina.
d. [Amy] further disclosed that on or about the Summer of 2016
that [she] was getting a new bed and was sleeping on an air
mattress. [Appellant] placed his finger inside of [her] vagina.
In addition, [Appellant] pulled [her] hand onto [his] penis
several times but [she] continued to pull her hand away.
e. [Amy] further disclosed that on or about the Summer of 2016 that [she]
was in a swimming pool with [Appellant] and [her friend Mary]. While
in the swimming pool, [Appellant] did touch [Amy’s] inner thigh . . . and
[he] repeatedly brushed his body against [Mary], making both females feel
uncomfortable.
f. [Amy] further disclosed that she began feeling uncomfortable
when [Appellant] would come into her room and rub her back
as she was l[]ying down. [Appellant] would not say anything.
3) On or about June 1, 2016, in Wichita County, Texas, [Appellant] did
then and there intentionally or knowingly cause physical contact with
[Mary], by passing and/or rubbing [his] body against her[s] in a
swimming pool, and [he] knew or should have reasonably believed
that [she] would regard the contact as offensive or provocative.
[Emphasis added.]
In the State’s direct examination of Amy in the jury’s presence, the prosecutor
asked if she remembered “any other times of [Appellant] touching [her]
inappropriately,” and Amy answered, “There was one time in the pool. My best
friend—.” Appellant objected, “Your Honor, I’m gonna object to this.” The trial
court sustained the objection, and the prosecutor told Amy, “[I]t’s okay. You didn’t
do anything wrong. Okay? Let’s not talk about that incident.” Amy answered,
18
“Okay.” The prosecutor began asking another question: “Do you remember the
incident—,” and Appellant then stated, “Your Honor, I’m gonna ask that the jury be
instructed to disregard.” The trial court overruled that request.
Specifically, Appellant argues that the trial court abused its discretion by not
instructing the jury to disregard Amy’s testimony alluding to an extraneous offense
after sustaining his objection to the testimony. The State responds that Appellant
forfeited his complaint because his request for the instruction was late and unclear.
We hold that any error was forfeited and harmless.
The question posed to Amy concerned other inappropriate touching of her by
Appellant. The answer she began, “There was one time in the pool. My best
friend—” is responsive to the prosecutor’s question and alludes to Appellant’s
extraneous conduct against her contained in subsection (2)(e) of the State’s notice,
conduct to which Appellant lodged “no objection” in the hearing. By failing to object
in the hearing, Appellant forfeited any error. See Tex. R. App. P. 33.1(a)(1); Thomas,
505 S.W.3d at 924.
Even if Appellant’s statement of “no objection” and the trial court’s admission
of “the matters . . . considered in the hearing for the purposes stated” did not
encompass Appellant’s touching Amy’s inner thigh in the pool, even if Amy’s
testimony nonresponsively alluded to the criminal allegation in Number 3 of the
State’s notice, and even if that allegation was inadmissible under Article 38.37, see Tex.
19
Code Crim. Proc. Ann. art. 38.37, § 1(b), 3 Appellant’s request for an instruction to
disregard Amy’s testimony lacked sufficient specificity. To preserve a complaint for
our review, a party must have presented to the trial court a timely request, objection,
or motion stating the specific grounds, if not apparent from the context, for the
desired ruling. Tex. R. App. P. 33.1(a)(1); Fuller v. State, 827 S.W.2d 919, 926 (Tex.
Crim. App. 1992) (“To preserve error, . . . the most important procedure is to press
the specific objection to the point of obtaining an adverse ruling, be that to the
objection, the request for an instruction, or the motion for mistrial.”); Walker v. State,
440 S.W.2d 653, 660 (Tex. Crim. App. 1969) (upholding “the trial court’s refusal to
heed [defendant’s] written objection and instruct the jury ‘to disregard the actions, if
any, of Jim Langford as presented in the evidence of this case’” on the basis that “this
objection is too broad and vague and does not distinctly specify the ground of error
and does not point out to the court which actions of [defendant’s] companion at the
time in question and a defense witness to which he has reference”).
Notwithstanding Rules 404 and 405, Texas Rules of Evidence,
3
evidence of other crimes, wrongs, or acts committed by the defendant
against the child who is the victim of the alleged offense shall be
admitted for its bearing on relevant matters, including: (1) the state of
mind of the defendant and the child; and (2) the previous and
subsequent relationship between the defendant and the child.
Tex. Code Crim. Proc. Ann. art. 38.37, § 1(b).
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We cannot determine from Appellant’s general request for an instruction to
disregard whether he wanted the trial court to instruct the jury to disregard Amy’s
testimony, the prosecutor’s statement to her that she did nothing wrong, the
prosecutor’s statement directing her not to talk about “that incident,” or the
prosecutor’s new question beginning, “Do you remember the incident—.” By failing
to specify what he wanted the trial court to instruct the jury to disregard, Appellant
forfeited any error.
Even if error had been preserved, however, it would be harmless. Because the
error is not constitutional, Stewart, 221 S.W.3d at 310, we apply Rule 44.2(b). Tex. R.
App. P. 44.2(b). That Rule requires us to disregard any nonconstitutional error that
does not affect an appellant’s substantial rights. Id. An error that has a “substantial
and injurious effect or influence in determining the jury’s verdict” affects a substantial
right. Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005); King v. State,
953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S.
750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an error does not affect a
substantial right if we have “fair assurance that the error did not influence the jury, or
had but a slight effect.” Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)
(citation and internal quotation marks omitted); Johnson v. State, 967 S.W.2d 410,
417 (Tex. Crim. App. 1998). In determining the likelihood that a nonconstitutional
error adversely affected the jury’s decision, we review the record as a whole, including
any testimony or physical evidence admitted for the jury’s consideration, the nature of
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the evidence supporting the verdict, and the character of the alleged error and how it
might be considered in connection with other evidence in the case. Motilla v. State,
78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also consider the jury
instructions, the State’s theory and any defensive theories, whether the State
emphasized the error, closing arguments, and even voir dire, if applicable. Haley,
173 S.W.3d at 518–19; Motilla, 78 S.W.3d at 355–56. When an error that occurs in the
guilt-innocence phase of a trial does not likely move the jury from a state of
nonpersuasion to a state of persuasion concerning the defendant’s guilt, the error is
harmless. Murkledove v. State, 437 S.W.3d 17, 29 (Tex. App.—Fort Worth 2014, pet.
ref’d).
Error, if any, is harmless in this case. First, no other evidence refers to the
incident in the pool involving Appellant, Amy, and her friend. The State’s first
witness, Jennifer Edwards, a licensed sex offender treatment provider, testified
generally that a child sex offender’s grooming of a child “will usually start with
caressing the thigh or having the victim sit on their lap, maybe playing with them in
the swimming pool . . . .” She also testified that when penile plethysmographs are
administered, the person might be shown “kids in swimsuits” accompanied by audio
describing a sexual scenario. However, besides Amy’s words, “There was one time in
the pool. My best friend—,” no other evidence referred to swimming, the pool, or
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the incident involving Appellant, Amy, and a friend, nor did the parties refer to
swimming or the pool in voir dire, opening statements, or closing arguments. 4
Second, the trial court instructed the jury on multiple occasions to consider only
admitted evidence. After voir dire, the trial court told jurors to decide Appellant’s
guilt based “only on evidence admitted in open court” and to “obey all the
instructions [they had] received and others that [they would] be given during trial.”
Before opening statements, the trial court instructed the jury that it could not
“consider anything to which an objection is sustained,” and in the jury charge on
guilt-innocence, the trial court instructed the jury that it could consider “only . . . facts
and circumstances in evidence.” Absent evidence to the contrary, we usually presume
that a jury follows a trial court’s instructions. Gamboa v. State, 296 S.W.3d 574,
Appellant argues that the swimming incident “was the first topic, and the only
4
contested factual topic, mentioned in the State’s initial closing.” He is mistaken.
What the prosecutor actually said was this:
I want to briefly go over something in the Jury Charge. If you
would, just turn to No. 10 on Page 4. As Judge Brotherton was reading
that, you may have wondered what is he talking about there. . . . [Y]ou
heard testimony from [Amy] that there were other acts committed by
this Defendant against her that are not part of the actual indictment.
Those are other acts that she says that he committed against her and that
is what it’s referring to. Specifically she said that he made her touch his penis. In
addition, she talked about the second living room incident. And as you recall,
there’s only one living room incident under indictment. So that’s what
No. 10 is referring to if you have any questions about that. [Emphasis
added.]
23
580 (Tex. Crim. App. 2009); Thomas v. State, 461 S.W.3d 305, 311 (Tex. App.—Fort
Worth 2015, no pet.).
Third, the evidence supporting Appellant’s guilt was strong. See Motilla,
78 S.W.3d at 355. Amy testified about the charged conduct as well as several
extraneous, admissible acts of sexual abuse Appellant committed against her. The
SANE saw “fairly new” genital injuries that were consistent with Amy’s outcry, and
the forensic interviewer’s testimony also supported the charged conduct. The jury
heard the testimony of both Amy and Appellant and by convicting Appellant, showed
its belief in her credibility. See Franklin v. State, 193 S.W.3d 616, 620 (Tex. App.—Fort
Worth 2006, no pet.) (“[T]he jury is free to accept or reject any or all of the evidence
of either party, and any or all of the testimony of any witness.”).
For all these reasons, we hold harmless any error in the trial court’s refusal to
give the requested instruction to disregard. We overrule Appellant’s third point.
CONCLUSION
Having overruled Appellant’s three points, we affirm the trial court’s
judgments.
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/s/ Mike Wallach
Mike Wallach
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: February 6, 2020
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