Opinion
02-23-00122-CR
08-29-2024
Skyler Stevens, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from Criminal District Court No. 2 Tarrant County, Texas Trial Court No. 1776768
Before Sudderth, C.J.; Womack and Walker, JJ.
MEMORANDUM OPINION
Brian Walker Justice
Skyler Stevens appeals from his conviction by a jury of continuous sexual abuse of a young child (CSA), A.B. He brings six points of error: (1) the trial court abused its discretion by admitting the Sexual Assault Nurse Examiner (SANE) report; (2) the trial court abused its discretion when it allowed two witnesses to give "truth and veracity opinions"; (3) the evidence was insufficient to prove that two acts of sexual abuse occurred 30 days apart; (4) the trial court erred by not striking testimony that violated the Rule; (5) the trial court egregiously erred by instructing the jury that the offenses had to be 30 days in duration rather than 30 days apart; and (6) the trial court erred by instructing the jury that it did not have to agree unanimously about the underlying offenses. We will affirm.
We use initials or pseudonyms when referring to the child or their family to protect the child's privacy. See Tex. R. App. P. 9.10(a)(3).
I. BACKGROUND
In the summer of 2018, Stevens and his girlfriend, A.B.'s aunt (Aunt), moved into an apartment with A.B.'s grandmother (Grandmother). A.B. (who was nine at the time) and his younger brother, E.B., started visiting the apartment most weekends and spent considerable time with Stevens. Concerns arose related to A.B.'s relationship with Stevens, and A.B. eventually reported that Stevens had sexually abused him. Stevens was charged with one count of CSA, three counts of aggravated sexual assault of a child, and two counts of indecency with a child, and the case proceeded to a jury trial.
A. Trial Evidence
Before the start of testimony, the State invoked the Rule and the witnesses were admonished not to speak with anyone about their testimony until after trial.
A.B's mother (Mother) is married to Grandmother's son (Stepfather). Mother testified that she began dating Stepfather in 2012 and met Aunt and Stevens at that time.
Mother testified that when Aunt and Stevens moved in with Grandmother, Stevens would ask for A.B. and E.B. to visit them. Mother said that these visits started in September 2018. She testified that A.B. and E.B. visited them "every weekend if not every other weekend" from September through October 2018. During these visits Stevens would buy the boys gifts, which Mother did not believe Aunt and Stevens could afford. Mother testified that the boys' final visit with Stevens occurred at the end of October. She said that Stevens picked them up on the 26th and they returned home on the 28th. After this visit, Grandmother called Mother and voiced some concerns, so Mother decided to end the visits with Stevens.
Mother testified that, in the month after the visits with Stevens ended, A.B. started waking up screaming from nightmares, but he refused to discuss them with Mother. Mother testified that, on November 25, 2018, Stepfather caught A.B watching "bondage porn" on a cellphone. Mother talked to A.B. about it, and he said that Stevens had made him watch similar pornographic videos. A.B. also reported to her that Stevens had made him touch Stevens's penis and that Stevens would touch A.B.'s penis.
Mother testified that she reported the abuse to law enforcement. In her written statement to police, she reported that A.B. "ha[d] been going over [to Stevens's] since Sep. of 2018" and that A.B. had told her that he was abused "every[]time" he visited. She stated that, after going to the police, A.B. reported to her additional details of the abuse, including that Stevens had made him put his mouth on Stevens's penis, that Stevens had tried to anally penetrate him but was worried he would cause A.B. to bleed, and that Stevens had locked him in a closet.
On cross examination, Stevens's attorney asked Mother if A.B. had been kidnapped by his biological father, if A.B. had been a witness to domestic violence, and if A.B. had received counselling for this trauma. Mother testified that A.B. had never been kidnapped, but she described a custody dispute over A.B. that included a time where the biological father had taken A.B. from her possession. She said that A.B.'s biological father initially had custody of A.B. until Mother was later awarded custody. She also testified that A.B. had never witnessed domestic violence and that A.B had not received therapy until after Stevens's abuse.
The record indicates that A.B. had been forensically interviewed at Alliance for Children (Alliance), a child advocacy center, and that he had reported to the interviewer that he had received four years of therapy after being taken from Mother as a baby by his biological father. Mother testified that she did not know why A.B. had reported this because he had never received any such therapy.
Mother's testimony on this issue conflicted with written records admitted at trial from Alliance. Those records reflect that Mother had made the following statement to Alliance: "[A.B.] previously witnessed [domestic violence] between his biological father and [Mother], as well as his biological father kidnapping him at 6-months-old." Mother testified that Alliance had made an error by documenting this as a "kidnapping" and also refuted that A.B. had witnessed "a tremendous amount of domestic violence" between her and A.B.'s biological father: "How could he witness domestic violence when he was - - if that's [sic] six months old?"
2. Stepfather's Testimony
Stepfather testified that Stevens had shown little interest in A.B visiting prior to 2018. Before 2018, Aunt would ask for A.B. and E.B. to visit, but those instances were "few and far between." Stepfather said that it all changed in the beginning of 2018 when Aunt and Stevens started to regularly ask for the boys to visit.
Stepfather testified that he discovered A.B. watching pornographic videos on a cell phone and that A.B. repeatedly told him, "I'm sorry, I'm sorry, I'm sorry." Stepfather immediately told Mother what he had seen, and Mother confronted A.B. about it. Stepfather testified that, after Mother spoke with A.B., she came to Stepfather "crying, screaming, saying he touched my boy, he touched my son." Stepfather also testified that, in the October 2018 phone call from Grandmother, she had expressed concerns to Mother and Stepfather about certain behavior that she had witnessed between Stevens and the boys.
3. Grandmother's Testimony
Grandmother lived with Stevens and Aunt at the time of the abuse. Grandmother testified that she had put down a deposit on an apartment to share with Aunt and Stevens, who were facing eviction. According to Grandmother, they all moved into this apartment at the end of July 2018. After they moved into the apartment, A.B. and E.B. started visiting "almost every weekend." She explained that Stevens would be alone with the boys and take care of them when Aunt was at work from 2:00 pm to 10:00 pm on the weekends. She said that Stevens took the kids on outings, purchased things for them, and played video games with them. She testified that they played video games for many hours and stayed up late. Moreover, Grandmother testified that starting in August 2018, A.B. and Stevens would sleep together on a couch in the living room while E.B. and Aunt slept in a separate bedroom.
Grandmother testified that an incident on October 27, 2018, made her particularly concerned. That night Grandmother had a "weird gut feeling" while A.B. and Stevens "were up all night playing video games." That night she left her room a few times to check on them and saw that they were laying together on the couch and watching something on an electronic device. She said that she fell asleep in her room around 3:00 a.m. but woke up to A.B. crying in the living room around 5:00 a.m. She heard him say "something to the effect of, now you have to buy me something." She then heard Aunt in the living room asking A.B. what was wrong, so she decided to let Aunt handle the situation. However, the next day-October 28, 2018-she called Mother and Stepfather to inform them of the situation. She testified that during the call she had said that she did not think "anything was going on" but she "thought it was . . . just inappropriate decisions, bad decisions."
4. Donna Wright's Testimony
Donna Wright is a pediatric nurse practitioner for Cook Children's Medical Center. She is also a SANE nurse and is trained to conduct medical examinations on children who may have been sexually assaulted. Wright testified using her SANE report, and she read into evidence the entirety of A.B.'s statements from the report regarding the abuse over no objections from the defense.
Wright's SANE report is a fifteen-page document that contains, among other things, reports showing A.B.'s vitals on the day of his visit, intake forms with A.B.'s identifying information, various authorization forms, A.B.'s medical history, a report of his physical examination, and two patient history forms. One patient history form contains A.B.'s statements describing the abuse. The other patient history form contains Mother's statements describing what A.B. had disclosed to her about the abuse.
Wright testified that she examined A.B. on December 10, 2018. She asked him if he knew why they were doing the examination and he responded because "[s]omebody did something bad to me. He sticked up [sic] his private up my B-U-T-T. He tried." A.B. reported to Wright that Stevens had (1) contacted A.B.'s anus with his penis; (2) contacted A.B.'s anus with his finger; (3) put his mouth on A.B.'s penis; (4) rubbed A.B.'s penis; and (5) made A.B. rub Stevens's penis. A.B. told Wright that this abuse had occurred "every weekend" that he visited Stevens's apartment and that the last instance of abuse had occurred on October 29, 2018.
Wright testified that a physical examination of A.B. did not show any injuries. At this point, the State offered to admit Wright's SANE report into evidence. Stevens objected, claiming generally that the entire report was hearsay. The State responded that the report was a medical record. The trial court overruled the objection and admitted the report.
5. Alexis Harrison's Testimony
Alexis Harrison-an expert in forensic interviews and child-abuse dynamics- testified that she had performed A.B.'s forensic interview at Alliance. She explained that the purpose of a forensic interview is to allow a child to explain their experience of abuse in a safe place. Harrison testified generally about the concepts of coaching and grooming and how to identify when a child has been coached to say or not say something or has been groomed by an abuser.
Specific to A.B.'s interview, Harrison testified that she discussed with him the difference between the truth and a lie. On direct examination, she agreed that A.B. had made some statements that were "unbelievable" during the interview, including that Stevens had burned him, A.B. had tried to burn Stevens, and A.B. had called the police to report the abuse. The following exchange then occurred:
Q. Did you necessarily think those were true statements?
[Defense Counsel]: Objection, relevance; and it's improper bolstering, going to the credibility of the child.
The Court: It's overruled.
A. My job is not to determine whether the child is telling the truth or a lie, but to gather information. So he articulated things that appeared to be defense mechanisms for some really awful stuff that happened to him.
Q: [] Okay. You say "defense mechanisms." What do you mean by that?
A. In therapy we often see people not want to talk about really hard things, because it's really traumatic, it's triggering, it's embarrassing, it's shameful.
And they want to have had some control and power in that moment, they couldn't have been a victim; and so they make statements regarding fighting back or calling the police or running away, in retrospect, to be less of a victim of those terrible things.
. . . .
Q. Did it appear to you that when [A.B.] was telling about his abuse and indicating these things about running and calling the police, did those appear to you, in your training and experience, to be defense mechanisms?
A. They did.
Q. Because he was indicating those defense mechanisms, does that automatically mean that everything else he said was untrue?
A. Again, my job is not to determine whether the child is telling the truth or a lie. His statements of his experience with those peripheral and sensory details appeared to be his experience.
Harrison also testified that she had seen no signs that A.B. had been coached:
Q. We talked about red flags for coaching. Did you see or observe any red flags that [A.B.] had, in your training and experience, for coaching?
[Defense Counsel]: Judge, I object. This is a direct violation of the motion in limine that's been filed. It's under Yount v. State and Schutz v. State. This is an improper bolstering by this witness, and we object. And it's a violation of the motion in limine.
The Court: All right. It's overruled.
A. Can you repeat your question?
Q. [Prosecutor] Sure. Based on your training and experience, did you see any of the red flags we talked about?
A. I didn't see any red flags.
Q. I think I might have mentioned this, but were there points in it that he was able to correct you on certain things?
A. He was.
Q. And what is the importance of that?
A. That a child won't allow me to say things that are not correct, that he would not be led to say things that are not his perspective of right.
Prior to trial, Stevens filed a motion in limine to require the State to "seek a ruling outside the presence of the jury before eliciting or offering any . . . evidence regarding the truthfulness of the complaining witness or of victims of sexual abuse as a whole. Yount v. State, 872 S.W.2d [706] (Tex. Crim. App. 199[3])." The trial court granted the motion.
6. A.B.'s Testimony
A.B. testified that Stevens was "[l]ike an uncle" to him and that he would spend the night with Stevens "every weekend." During these visits, they played video games, went on various outings, and Stevens bought him gifts.
A.B. testified about the first instance of sexual abuse. He said that he was sleeping on the couch in the living room and woke up to Stevens pulling his pants and underwear down and putting his mouth on A.B.'s penis. A.B. testified that this happened multiple times and occurred when he visited the apartment on the weekends. A.B. described other instances of abuse, including Stevens attempting to penetrate his anus; Stevens forcing A.B. to touch Stevens's penis; Stevens touching A.B.'s penis multiple times; and Stevens showing A.B. pornographic images. A.B said that the abuse had occurred in the living room except that the attempted penetration had occurred in the bedroom while Aunt was at work.
According to A.B., he started spending the night at Stevens's apartment soon after Stevens and Aunt moved into the new apartment with Grandmother, and the abuse started then. He also testified that, after the abuse was reported to authorities, he had gone to therapy for a time then stopped.
A.B. also testified that, in preparing for trial, he had told attorneys for the State that he had been having suicidal thoughts and that they recommended that he restart therapy to deal with those issues. He testified that those thoughts were related to "what happened to [him], because of the depression; just so much anger and pain."
On cross-examination and outside the presence of the jury, A.B. was shown portions of his videorecorded forensic interview (to refresh his memory) and asked if he remembered certain statements from the interview. A.B. was asked if he remembered telling the interviewer "that [he] had been taking therapy for four years[.]" A.B. responded that he was "not completely sure" and added, "But my mom did tell me about that, that I apparently [] took therapy for four years because my dad abused me and kidnapped me." When asked when Mother had told him this, A.B. responded, "Yesterday in the car . . . . I must have lied to her because I have never t[a]ken therapy for that long, and my father never abused me." Stevens then moved to strike both Mother's and A.B.'s testimony from the record, arguing that Mother talking to A.B. about her testimony "in preparation for his testimony" had violated the Rule. The trial court denied the motion but stated that it would "talk to [Mother] about that."
The jury then returned, and A.B.'s cross-examination continued, which including the following exchange:
Q. Do you remember telling [the forensic interviewer] that you had been taking therapy for four years?
A. Yes, sir.
Q. Was that true?
A. False.
A.B. did not testify in front of the jury about his biological father either kidnapping him or taking him during the custody dispute with Mother.
7. Lindsey Dula's Testimony
Lindsey Dula also testified as an expert in forensic interviews and child-abuse dynamics. She testified that male victims of sexual abuse perpetrated by male abusers often make "hero statements." According to Dula, children make these statements to appear as heroes or to appear as if they had tried to fight back against their abuser. She believed that A.B. had made hero statements to investigators in his testimony, specifically that he said he had tried to stop Stevens by swatting his hand away, that he had used a lighter to burn Stevens, and that he had tried to call the police.
On cross-examination, Dula was questioned about whether it would be difficult to parse grooming behavior from "normal behavior" between an uncle and his nephew-such as spending time together and the uncle buying him toys-if the nephew later lied about his uncle sexually abusing him. Dula answered that in such a scenario, it might not be possible to know whether the uncle's actions were "evil" or "beneficial."
On redirect, Dula was asked to expand upon this line of questioning:
Q. Let's start right there where defense left off, then. In regards to children potentially lying and making up sexual allegations, I think we can all agree kids lie sometimes; right?
A. They do.
Q. Adults lie sometimes; right?
A. Yes, sir.
Q. A kid could be lying to get out of trouble; right?
A. Yes, sir.
Q. But if a child is lying to get out of trouble, does that make sense that they have a rolling disclosure of, once you're out of trouble, to continue to disclose additional and additional and additional ways you have been abused?
[Defense Counsel]: Judge, we object. This is a violation of the motion in limine. We object under 703, we object under Yount v State and Schutz v. State; and we also object that the motion in limine is not being followed by the State.
The Court: Response?
[The State]: Your honor, I'm asking whether or not that is consistent with it, one way or another. There's no violation of defense's motion. We can approach and talk if we need to. But that's not a violation of it, based on the question that was asked.
The Court: Overruled. Answer the question.
A. Could you repeat the question?
Q. [] If in the defense's example, we're talking about a kid who was lying to get out of trouble, like defense counsel asked you, would it make sense then if a kid has lied to get out of trouble, once they're out of trouble, would it make sense for them to continue to disclose different ways of abuse throughout that disclosure process?
A. That wouldn't make sense to me, no.
Q. Why would that not make sense to you?
A. Because we're taking them and - - you're talking about child sexual abuse and what takes place during the course of an investigation of child sexual abuse. It doesn't make sense that if a child's in trouble they're going to keep talking about this.
Kids, again, show the shame and embarrassment and the reluctance to talk about it. It wouldn't make sense to talk more about that if that's - - if it was only because they were in trouble for something.
During opening statements, Stevens argued that A.B. had lied about being abused by Stevens to avoid facing punishment after Stepfather caught him watching pornography.
Dula was also asked if, in cases where a child had experienced domestic violence or trauma in the past, such experience "was indicative that a child is going to come up with a story about sexual abuse?" Stevens objected to this question as "eliciting traits of being manipulated or fantasizing in direct violation of the law," and the trial court overruled the objection. In response to the question, Dula answered, "No. I don't find that in my history."
8. Mother's Voir Dire Testimony
After the State rested, the trial court called Mother and asked if she had talked to A.B. about the case or her testimony. She gave the following explanation:
The only thing I talked to him about was about his father, if he ever said anything to Alliance for Children about he was kidnapped, [sic] if he ever thought his father kidnapped him. And I explained to him that it's not kidnapping, because at the time, I did not have custody of him. So in this state it's not considered kidnapping. So I had asked him, have you ever told anybody that you were kidnapped? And he said no.
Mother told the trial court that she had forgotten that she had been admonished not to speak about the case. She assured the trial court that she had not spoken to A.B. about anything else related to the case or her testimony, including that she had not told A.B. to make allegations against Stevens. At Stevens's request, the trial court asked Mother whether she had talked to A.B. "about the four years of seeing a therapist," and Mother denied having done so.
9. Aunt's Testimony
Aunt testified for the defense. She agreed that the boys had visited them at the new apartment and stated that "from the date that this all blew up" they had been visiting for "maybe about a month." She testified that Stevens and the boys would stay up late playing video games, but denied ever seeing anything concerning or inappropriate between Stevens and A.B. It was her opinion that A.B. had a poor character for telling the truth.
B. Jury Charge and Verdict
The abstract portion of the charge instructed the jury on the CSA offense as follows:
[A] person commits the offense of Continuous Sexual Abuse of a Child if the person, during a period that is 30 days or more in duration, commits two or more acts of sexual abuse, to wit: Aggravated Sexual Assault of a Child or Indecency with a Child. . . .
. . . .
[T]o find the Defendant guilty of the offense of Continuous Sexual Abuse of a Child, you are not required to agree unanimously on which specific acts of sexual abuse were committed by the Defendant or the exact date when those acts were committed.
However, in order to find the Defendant guilty of the offense of Continuous Sexual Abuse of a Child, you must unanimously agree that the Defendant, during a period that is 30 or more days in duration, on or about the 1st day of August 2018, through the 28th day of October 2018, as charged in the indictment, committed two or more acts of sexual abuse.
And the application paragraph of the charge instructed as follows:
Now, if you find from the evidence beyond a reasonable doubt that [Stevens] . . . on or about the 1st day of August 2018, through the 28th day of October 2018, during a period of time that is 30 days or more in duration, did then and there commit two or more acts of sexual abuse . . . then you will find [Stevens] guilty [of CSA]."
The jury was further instructed that, if it found Stevens guilty of continuous sexual abuse of a child, it should not consider any of the remaining counts for sexual assault and indecency. Stevens requested the inclusion of a lesser-included-offense instruction in the jury charge (which was denied) but did not otherwise object to the charge. The jury found Stevens guilty of CSA and assessed his punishment at 30 years' confinement. Stevens appealed.
II. DISCUSSION
A. Point of Error One
In his first point, Stevens argues that the trial court abused its discretion by admitting Wright's SANE report because it contained various hearsay statements made by A.B. and Mother that were not made for medical-diagnosis or business-records purposes. Stevens did not preserve this point for appeal.
1. Relevant Law
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). The party must obtain an express or implicit adverse trial-court ruling or object to the trial court's refusal to rule. Tex.R.App.P. 33.1(a)(2); Everitt v. State, 407 S.W.3d 259, 262-63 (Tex. Crim. App. 2013). "[U]nobjected-to testimony about objected-to evidence results in the forfeiture of the objection." Lumsden v. State, 564 S.W.3d 858, 888 (Tex. App.-Fort Worth 2018, pet. ref'd) (holding issue of SANE report's admissibility was forfeited when defendant objected to admission of SANE report after witness had already testified about contents of report without proper objection from defendant). Further, when an exhibit contains both admissible and inadmissible material, the objection to the exhibit must specifically refer the trial court to the challenged material to apprise it of the exact objection. Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995). If the objecting party does not specify which part of the exhibit is inadmissible, any asserted error in admitting the evidence is not preserved for review. Whitaker v. State, 286 S.W.3d 355, 369 (Tex. Crim. App. 2009).
2. Analysis
Wright testified from her SANE report (before it was admitted) and read verbatim each of A.B.'s statements as they appeared in the report. Stevens did not object to any of this testimony. Instead, he objected only later when the State sought to admit the report itself, lodging only a general hearsay exception to the entire report without specifying to the trial court which of the statements in the report were hearsay. Because much of the report was admissible under the medical-diagnosis-or-treatment exception to the hearsay rule, see Tex. R. Evid. 803(4); Lumsden, 564 S.W.3d at 888, it was incumbent upon Stevens to specify to the trial court which of the report's statements were inadmissible. See Whitaker, 286 S.W.3d at 369. Accordingly, because Stevens failed to object to Wright's testimony from the report and also because he did not delineate to the trial court which statements were inadmissible hearsay, Stevens failed to preserve this point for appeal.
Even had he preserved the point for our review, it would fail because admission of A.B.'s and Mother's statements from the report were largely cumulative of other evidence properly admitted at trial and, therefore, if any error existed in admitting the report, it was likely harmless. See Matz v. State, 21 S.W.3d 911, 912 (Tex. App.-Fort Worth 2000, pet. ref'd) ("It is well-established that the improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence.").
B. Point of Error Two
In his second point, Stevens argues that the trial court abused its discretion by admitting certain testimony from the State's experts (Harrison and Dula) because it was impermissible truth-and-veracity opinion testimony related to A.B.'s truthfulness. Specifically, he complains of the following testimony:
• Harrison's discussion of the defense mechanism employed by child-abuse victims whereby they say things to make themselves appear to have been in control or to have fought back against their abuser and that it appeared to her that A.B. had employed this mechanism in this case.
• Harrison's discussion of coaching and her opinion that A.B. had not exhibited red flags commonly found in children who have been coached to fabricate allegations of abuse.
• Dula's testimony about rolling disclosures and her opinion that it would not "make sense" to her for a child who had fabricated a sexual-abuse allegation to escape punishment to continue to disclose additional allegations after the fear of punishment had subsided.
• Dula's testimony that, in her experience, a child's history with domestic violence was not indicative of the child subsequently fabricating allegations of sexual abuse.
We do not agree that this testimony improperly opined about the veracity of A.B.'s allegations.
1. Standard of Review and Relevant Law
We review a trial court's decision on the admissibility of expert testimony for an abuse of discretion. Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). Expert testimony is inadmissible if it does not assist the jury and if it constitutes "a direct opinion on the truthfulness" of a child-complainant's allegations. Yount v. State, 872 S.W.2d 706, 708 (Tex. Crim. App. 1993). The State therefore may not elicit expert testimony that a particular child is telling the truth or that child complainants as a class are worthy of belief. Id. at 711-12. Nor may an expert offer a direct opinion on the truthfulness of a child-complainant's allegations. Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997).
An expert can, however, testify generally about coaching and manipulation and whether a child exhibited signs of coaching or manipulation. See id. at 73; Cantu v. State, 366 S.W.3d 771, 777 (Tex. App.-Amarillo 2012, no pet.); see also Gonzales v. State, No. 03-13-00333-CR, 2015 WL 3691180, at *4 (Tex. App.-Austin June 11, 2015, no pet.) (mem. op., not designated for publication); Johnson v. State, No. 02-13-00482-CR, 2015 WL 1792971, at *3 (Tex. App.-Fort Worth Apr. 16, 2015, pet. ref'd) (mem. op., not designated for publication). An expert may also testify about behavioral characteristics that child-abuse victims commonly exhibit-such as certain coping mechanisms they may use or the reasons why they may have engaged in rolling disclosures-and opine whether a child's behavior is consistent with those characteristics. See Yount, 872 S.W.2d at 708-09; Cohn v. State, 849 S.W.2d 817, 818 (Tex. Crim. App. 1993); Shaw v. State, 329 S.W.3d 645, 651 (Tex. App.-Houston [14th Dist.] 2010, pet. ref'd); see also Rojas v. State, No. 02-22-00039-CR, 2023 WL 4115863, at *11 (Tex. App.-Fort Worth June 22, 2023, pet. ref'd) (mem. op., not designated for publication); Lindberg v. State, No. 02-14-00071-CR, 2015 WL 5634425, at *11 (Tex. App.-Fort Worth Sept. 24, 2015, pet. ref'd) (mem. op., not designated for publication).
2. Analysis
None of the expert testimony that Stevens complains of offered direct opinion as to the truthfulness of A.B.'s allegations. Harrison's complained-of testimony was permissible opinion testimony about the behavioral characteristics and defense mechanisms that A.B. had exhibited and that are common among child-abuse victims, see Shaw, 329 S.W.3d at 651, and about the lack of red flags he had exhibited indicating that he had not been coached, see Cantu, 366 S.W.3d at 777. Similarly, Dula's testimony related to his rolling disclosures did not directly opine about his truthfulness. See Lindberg, 2015 WL 5634425, at *11. And Dula's testimony that a child's past exposure to domestic violence was not an indication for future false allegations of abuse was a general opinion about child-abuse victims borne out of her own experience rather than a direct opinion about the truth of A.B.'s allegations. See Rojas, 2023 WL 4115863, at *12 ("The trial court did not abuse its discretion by allowing Dula to testify regarding red flags, behavioral characteristics, manipulation, coaching, the [complainant]s' describing sensory and peripheral details, and the consistency between the [complainant]s' interviews because such opinions were not direct comments upon the truth of [their] allegations.").
For these reasons, we hold that the trial court did not abuse its discretion by admitting Harrison's and Dula's complained-of testimony and overrule Stevens's second point.
C. Point of Error Three
In his third point, Stevens argues that the evidence was insufficient to prove that he had committed two acts of sexual abuse 30 days apart. We disagree.
1. Standard of Review
In our evidentiary-sufficiency review, we view all the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the crime's essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).
This standard gives full play to the factfinder's responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Queeman, 520 S.W.3d at 622.
The factfinder alone judges the evidence's weight and credibility. See Tex. Code Crim. Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622. We may not re-evaluate the evidence's weight and credibility and substitute our judgment for the factfinder's. Queeman, 520 S.W.3d at 622. Instead, we determine whether the necessary inferences are reasonable based on the evidence's cumulative force when viewed in the light most favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015); see Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017) ("The court conducting a sufficiency review must not engage in a 'divide and conquer' strategy but must consider the cumulative force of all the evidence."). We must presume that the factfinder resolved any conflicting inferences in favor of the verdict, and we must defer to that resolution. Murray, 457 S.W.3d at 448-49. The standard of review is the same for direct and circumstantial evidence cases; circumstantial evidence is as probative as direct evidence in establishing guilt. Jenkins, 493 S.W.3d at 599.
2. Relevant law
A person commits CSA if: "(1) during a period that is 30 or more days in duration," the person commits two or more acts of sexual abuse against a child under fourteen years old. Tex. Penal Code Ann. § 21.02(b). Under section 21.02, members of the jury are not required to agree unanimously "on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed." Id. § 21.02(d). However, they must agree unanimously that the defendant committed at least two acts of sexual abuse "during a period that is 30 or more days in duration." Id.; see Clark v. State, No. 02-19-00131-CR, 2020 WL 5949925, at *3 (Tex. App.-Fort Worth Oct. 8, 2020, no pet.) (mem. op., not designated for publication) ("[T]here must be some proof, whether circumstantial or direct, that the last act of sexual abuse occurred on at least the 29th day after the day of the first act.").
"Sexual abuse" under the CSA statute includes aggravated sexual assault of a child and indecency with a child as were charged in this case. See Tex. Penal Code Ann. § 21.02(c).
A person commits aggravated sexual assault against a child under fourteen if he
(i) causes the penetration of the anus or sexual organ of a child by any means;
(ii) causes the penetration of the mouth of a child by the sexual organ of the actor;
(iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;
(iv) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or
(v) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor[.]Id. § 22.021(B).
A person commits indecency with a child if he, with the intent to arouse or gratify his sexual desire, touches the anus or genitals (including through clothing) of a child under seventeen years old or touches any part of the body of a child under seventeen years old (including through clothing) with the person's anus or genitals. Id. § 21.11(a)(1), (c).
1. Analysis
Stevens does not contest the sufficiency of the evidence to show that he committed two or more acts of sexual abuse against A.B. Instead, he contends only that the evidence was insufficient to show that he committed two such acts against A.B. 30 days or more apart. We disagree because, viewing the evidence in the light most favorable to the verdict, the evidence was sufficient for the jury to rationally find that the first instance of abuse occurred in August 2018 and that the last occurred during the weekend of October 26, 2018.
a. First incident of abuse
A.B. testified in detail about the first time that Stevens abused him. He said that he was at the apartment sleeping on the couch when Stevens pulled A.B.'s pants down and put his mouth on A.B.'s penis. Grandmother testified that she, Aunt, and Stevens moved into the apartment at the end of July 2018 and that the boys visited "almost every weekend' after that. Specifically, she testified that, starting in August 2018, A.B. and Stevens had started sleeping together on a couch in the living room. Although Mother testified that the boys visited the apartment from September through October, she concurred that they visited "every weekend if not every other weekend." And A.B. reported that he started visiting the apartment soon after Stevens, Aunt, and Grandmother moved in and that the abuse had occurred every time that he visited.
b. Last incident of abuse
It is undisputed that A.B.'s last visit to Stevens's apartment occurred on the weekend of October 26, 2018. Though A.B. did not explicitly testify that he was abused that weekend, the evidence was sufficient to allow the jury to reasonably infer that he was:
• A.B. reported that the abuse occurred every time that he visited;
• Grandmother testified that she woke up to hear A.B. crying in the living room and that he said "now you have to buy me something" early on October 27, 2018;
• A.B. reported to Wright that the reason for his SANE exam was because Stevens "did something bad to me. He sticked up [sic] his private up my B-U-T-T. He tried.";
• A.B. reported to Wright that Stevens had committed additional acts of sexual abuse against him; and
• A.B. reported to Wright that the last incident of abuse occurred on October 29, 2018.
Based on the cumulative force of this evidence viewed in the light most favorable to the verdict and deferring to the jury's discretion to weigh the evidence and to resolve any conflicts therein, see Murray, 457 S.W.3d at 448, we hold that the evidence was sufficient for it to reasonably infer that Stevens sexually abused A.B. in August 2018 and that he committed a second act of sexual abuse against A.B. during the weekend of October 26, 2018, a period more than 30 days apart. Accordingly, we overrule Stevens's third point.
Stevens cites our decision in Hines v. State to argue that the jury improperly speculated that the abuse was separated by more than 30 days. 551 S.W.3d 771, 779- 80 (Tex. App-Fort Worth 2017). There, the evidence showed only that the defendant first abused the victim "[s]ometime in August 2014" and culminated when they had sex on September 23, 2014. Id. at 773-75. We held that the victim's testimony of the abuse starting on an unknown day in August left the jury to only speculate about whether it had occurred before or after August 23, as was required there to meet the 30-day statutory requirement. Id. at 779-80. Our timeline here, though, is not so compressed. As we have explained, it was reasonable for the jury to believe that A.B.'s abuse started sometime in August and ended the weekend of October 26. Thus, the exact date in August is irrelevant, because even the last day of August would have been more than 30 days from the weekend of October 26.
D. Point of Error Four
In his fourth point, Stevens argues that the trial court abused its discretion by not striking Mother's and A.B.'s testimony due to their violation of the Rule. We will assume without deciding that the trial court erred and hold that Stevens was not harmed by the assumed error.
An error analysis is not required when a harm analysis is dispositive. Wooten v. State, 400 S.W.3d 601, 607 (Tex. Crim. App. 2013) ("Finding our harm analysis thus dispositive, we need not address whether the trial court did, in fact, err . . . ."); Delangelhernandez v. State, No. 02-19-00022-CR, 2020 WL 101879, at *2 (Tex. App.- Fort Worth Jan. 9, 2020, no pet.) (mem. op., not designated for publication) (assuming, without deciding, that error occurred but concluding that the error was harmless).
1. Standard of Review and Relevant Law
The Rule provides for exclusion of witnesses from the courtroom during trial and prohibits them from conferring with one another about the case. Tex. Code. Crim. Proc. Ann. art. 36.03; Tex. R. Evid. 614. The Rule's purpose is to prevent corroboration, contradiction, and the influencing of witnesses. Minor v. State, 91 S.W.3d 824, 829 (Tex. App.-Fort Worth 2002, pet. ref'd). We review a trial court's decisions related to violations of the Rule for abuse of discretion. Bell v. State, 938 S.W.3d 35, 50 (Tex. Crim. App. 1996).
Even if a trial court abuses its discretion, we must still determine whether the error requires reversal. Russell v. State, 155 S.W.3d 176, 181 (Tex. Crim. App. 2005). A point related to a violation of the Rule is a non-constitutional complaint and is thus reviewed for harm under Texas Rule of Appellate Procedure 44.2(b). Id.; Oliphant-Alston v. State, No. 02-12-00628-CR, 2013 WL 6198844, at *5 (Tex. App.-Fort Worth Nov. 27, 2013, no pet.) (mem. op., not designated for publication). Rule 44.2(b) requires us to disregard any nonconstitutional error that does not affect the appellant's substantial rights. Tex.R.App.P. 44.2(b). A substantial right is affected when the error had a "substantial and injurious effect or influence in determining the jury's verdict." Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005); see 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 the reviewing court has a fair assurance from an examination of the entire record that the error did not influence the jury or that it had but a slight effect. Macedo v. State, 629 S.W.3d 237, 240 (Tex. Crim. App. 2021). In deciding that question, 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. Id.; Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
2. Analysis
Assuming without deciding that the trial court erred by not striking Mother's and A.B.'s testimony for their violation of the Rule, we cannot conclude on this record that Stevens's substantial rights were affected by that assumed error.
It is undisputed that Mother and A.B. violated the Rule by conferring about their testimony during trial. Mother testified that A.B. had never been kidnapped by his biological father or received therapy related to the custody dispute. A.B. then testified (outside of the jury's presence) that he and Mother had discussed the situation and-though not entirely clear from his testimony-it appears that this conversation convinced him that he had lied to the forensic interviewer about being kidnapped and receiving therapy. In front of the jury, A.B. testified that he had incorrectly told the forensic interviewer that he had received four years of therapy prior to making his allegations against Stevens, but no mention was made of his biological father or the kidnapping issue. On voir dire, Mother told the trial court that the only topic she had spoken to A.B. about was whether he had been kidnapped by his biological father. She admitted telling A.B. that he had not been kidnapped but denied speaking to him about whether he had received therapy. Thus, the sum result of the Rule violation was that Mother told the jury that A.B. had not received prior therapy related to the custody dispute with biological father, and A.B. told the jury that he had falsely reported receiving such therapy to the forensic interviewer.
Stevens argues that he was reversibly harmed by the Rule violation here because the improper conversation between Mother and A.B. resulted in A.B. changing his pretrial statement (that he had received prior therapy) to comport with Mother's testimony at trial (that he had not received prior therapy). Mother had this conversation with A.B., says Stevens, "[i]n order to have their testimony align and to place all blame on [Stevens]."
It might be true that the Rule violation here served in some sense to bolster Mother's credibility on the therapy issue to show that A.B. had not needed therapy prior to being abused by Stevens. But it could also be argued that Stevens was aided by the Rule violation. Stevens's main defensive theory was that A.B. had fabricated the allegations against him. Accordingly, Stevens spent much of his cross-examination of A.B. highlighting A.B.'s prior inconsistent or unbelievable statements in an effort to paint him as untruthful. If Mother's improper conversation with A.B. caused him to change his testimony on the therapy issue, then that provided Stevens with yet another inconsistent statement to use to impeach A.B.'s truthfulness. Indeed, that is exactly how Stevens used A.B.'s therapy statements. It was Stevens who elicited A.B.'s therapy testimony and his admission that he had made the false statement to the forensic interviewer. And Stevens argued at closing that this was one of several lies that A.B. had told throughout the investigation and trial.
Additionally, the direct and circumstantial evidence supporting Stevens's guilt was relatively strong. A.B. testified in detail about numerous instances of sexual abuse by Stevens. See Connell v. State, 233 S.W.3d 460, 466 (Tex. App.-Fort Worth 2007, no pet.) (explaining that a complainant's testimony alone is sufficient to support child-sexual-abuse convictions). Mother testified that A.B. (a nine-year-old) had been caught watching bondage pornography and had been waking up with nightmares near when the abuse occurred. Further, Grandmother testified that she had noticed concerning behavior between A.B. and Stevens; there was evidence that Stevens had groomed A.B.; and State's experts testified that A.B. had exhibited behaviors common to child-abuse victims and did not exhibit signs of coaching. And Stevens has not challenged the sufficiency of the evidence to support that he sexually abused A.B. (only that the sexual abuse did not occur more than 30 days apart). See Hailey v. State, 413 S.W.3d 457, 473 (Tex. App. 2012) ("Indeed, although not a confession of guilt, Appellant does not challenge the sufficiency of the evidence establishing his guilt.").
For these reasons, we hold that Stevens's substantial rights were not affected by any assumed error in not striking Mother's and A.B.'s testimony due to their violation of the Rule. We overrule Stevens's fourth point.
E. Point of Error Five
In his fifth point, Stevens argues that the trial court egregiously erred by instructing the jury that the offenses had to be 30 days in duration instead of 30 days apart. He contends that the charge authorized the jury to convict him of CSA if he committed two acts of sexual abuse on any two dates between the dates alleged in the indictment (the period of August 1, 2018, through October 28, 2018) rather than 30 days apart from one another. We will assume without deciding that the trial court erred but hold that the assumed error did not egregiously harm Stevens. See Williams v. State, No. 02-20-00104-CR, 2021 WL 5227167, at *7 (Tex. App.-Fort Worth Nov. 10, 2021, no pet.) (mem. op., not designated for publication) (assuming without deciding that similar language in CSA jury charge was error but holding that error was harmless).
1. Relevant Law
A trial court is required to prepare a jury charge that accurately sets out the law applicable to the specific offenses charged. Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007). If a defendant complains on appeal about an erroneous instruction in the charge, whether the defendant objected to the trial court determines the applicable standard for assessing harm. See Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). If a proper objection was made to the trial court regarding a jury-charge error, a reviewing court determines whether the error caused the defendant some harm. Almanza, 686 S.W.2d at 171. When, as here, no objection was made, a reviewing court determines whether the error caused the defendant egregious harm. Nava, 415 S.W.3d at 298; Almanza, 686 S.W.2d at 171.
Egregious harm is a "high and difficult standard" to meet, and such a determination must be "borne out by the trial record." Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015). The analysis for egregious harm is fact specific and is done on a "case-by-case basis." Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013). Errors that result in egregious harm are those "that affect the very basis of the case, deprive the defendant of a valuable right, vitally affect the defensive theory, or make a case for conviction clearly and significantly more persuasive." Taylor v. State, 332 S.W.3d 483, 490 (Tex. Crim. App. 2011). We consider the following factors in evaluating for egregious harm: (1) the entire jury charge; (2) the state of the evidence, including the contested issues and weight of probative evidence; (3) the argument of counsel; and (4) any other relevant information revealed by the entire record. Almanza, 686 S.W.2d at 171. "An egregious harm determination must be based on a finding of actual rather than theoretical harm." Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011).
Again, the law provides that a person commits CSA if "during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse" against a child younger than fourteen. Tex. Penal Code Ann. § 21.02(b).
2. Analysis
Stevens concedes (and the record confirms) that he did not object to the charge, thus we will analyze each Almanza factor to determine whether Stevens was egregiously harmed.
Reviewing the entire jury charge, we note that the application paragraph diverges from the CSA statute's language in that it adds the relevant 60-day time period from the indictment: "if you find from the evidence beyond a reasonable doubt that [Stevens] . . . on or about the 1st day of August 2018, through the 28th day of October 2018, during a period of time that is 30 days or more in duration, did then and there commit two or more acts of sexual abuse . . . then you will find [Stevens] guilty [of CSA]." But, importantly, the abstract portion of the charge materially tracks the CSA statute: "[A] person commits [CSA] if the person, during a period that is 30 days or more in duration, commits two or more acts of sexual abuse." The inclusion of this language in the abstract portion mitigates any harm that may have occurred from the application paragraph's language. See Williams, 2021 WL 5227167, at *6. Thus, a view of the entire charge does not weigh in favor of egregious harm. See id.
As to the state of the evidence, Grandmother and A.B.'s testimony established that (1) Grandmother, Stevens, and Aunt had moved into the new apartment in late July 2018, (2) the boys visited Stevens there almost every weekend, (3) Stevens sexually abused A.B. every time they visited, and (4) the last incident of abuse occurred the weekend of October 26, 2018. The state of this evidence does not weigh in favor of egregious harm because there was no evidence that the only acts of sexual abuse occurred less than 30 days apart. See id. at *6. Instead, there was ample evidence that Stevens, during a period that was 30 or more days in duration, committed two or more acts of sexual abuse against A.B. See Tex. Penal Code Ann. § 21.02(b).
As to the argument of counsel, the State's attorney at closing told the jury that the evidence had been sufficient to find Stevens guilty of multiples acts of aggravated sexual assault and indecency against A.B. and that "the only question left is were they 30 days apart." He then outlined the evidence related to the time period of the abuse from "around July, early August" through October 28th, and concluded by stating,
Even if you believe it started on the last Saturday in September, that is still 30 days. . . . It doess not matter. You do not have to be unanimous on which two acts you believe occurred. Somebody can believe it as the two acts of aggravated sexual assault. Somebody else can believe there were two indecencies or touching 30 days apart."
Thus, the State's attorney made it clear to the jury that, to find Stevens guilty of CSA, they had to find that he committed two acts of sexual abuse against A.B. that were separated by at least 30 days. See Williams, 2021 WL 5227167, at *7. This factor does not weigh in favor of egregious harm.
Finally, as to other relevant information from trial, we note that the State's attorney explained in extensive detail during voir dire the CSA duration requirement:
First, continuous sexual abuse of a child, what this is going to mean is that during a period of 30 days or more, the Defendant commits two or more acts of sexual abuse of a child that is younger than 14. So what
that means is that one of those acts, the aggravated sexual assault of a child or indecency with a child has to take place, 30 days or more has to pass and then another act has to take place. And that is the minimum requirement for it, that there has to be this 30-day gap window between the two offenses.
Now, there could be two offenses, there could be 30 offenses, there could be 60. There could be any number more than two. But what we have to prove is that there were two that were 30 days apart.
We conclude that this factor does not weigh in favor of egregious harm. Thus, based on our review of the Almanza factors, we cannot say that the assumed error egregiously harmed Stevens. See Almanza, 686 S.W.2d at 171. We overrule his fifth point.
F. Point of Error Six
In point six, Stevens argues that the trial court erred by instructing the jury that they did not need to agree unanimously on which underlying acts of sexual abuse were committed. Citing Ramos v. Louisiana, he argues that this violated the Sixth Amendment's unanimity requirement (as incorporated against the States via the 14th Amendment). 590 U.S. 83, 88-89, 140 S.Ct. 1390, 1394-95 (2020). We have rejected this argument many times-including after Ramos was decided-and do so again. See Williams, 2021 WL 5227167, at *7 (collecting cases).
In the interest of brevity, we set forth our discussion on the issue from Williams because it applies identically to Stevens's point:
Williams asks us to reconsider our prior holdings in light of the United States Supreme Court's opinion in Ramos v. Louisiana. In Ramos, the Court found that the Sixth Amendment right to a jury trial, as
incorporated against the states by the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious offense. Accordingly, the Court declared unconstitutional certain laws in Louisiana and Oregon that permitted convictions of serious offenses on jury verdicts agreed to by only ten of twelve jurors.
Having reviewed Ramos, we are unpersuaded by Williams's argument that the holding in Ramos somehow invalidates our prior holdings with respect to whether the CSA statute requires unanimity as to the underlying offenses. Our prior holdings did not turn on the same type of Sixth-Amendment issue as Ramos; rather, they turned on whether "the specific acts of sexual abuse alleged to have constituted CSA are not separate elements of the offense subject to the unanimity requirement." We do not see how Ramos changes our precedent that the underlying offenses are not separate elements subject to the unanimity requirement.Id. (cleaned up). We stand by this reasoning, apply it to this case, and hold that the trial court did not err in instructing the jury that it did not need to unanimously agree about the underlying acts of sexual abuse to find Stevens guilty under the CSA statute. We overrule Stevens's sixth point.
III. CONCLUSION
Having overruled all of Stevens's points of error, we affirm the trial court's judgment.