Affirmed and Memorandum Opinion filed March 17, 2015.




                                           In the

                        Fourteenth Court of Appeals

                                  NO. 14-13-00678-CR

                    GLYNN CHASE WASHINGTON, Appellant
                                             V.

                          THE STATE OF TEXAS, Appellee

                       On Appeal from the 240th District Court
                              Fort Bend County, Texas
                       Trial Court Cause No. 12-DCR-059441A

                     MEMORANDUM OPINION


      Appellant Glynn Chase Washington was convicted by a jury of aggravated
sexual assault of a child. 1 The trial court sentenced him to 35 years’ confinement.
In this appeal, appellant challenges: (1) in two related issues, the trial court’s denial
of his motion to suppress statements provided during an interview with police; (2)

      1
          See Tex. Penal Code § 22.021 (West 2013).
the legal sufficiency of the evidence to support the sentence imposed; and (3) the
trial court’s admission of expert testimony by a Sexual Assault Nurse Examiner
(SANE) witness. We conclude that: (1) the trial court did not abuse its discretion
by admitting appellant’s statements; (2) the evidence is legally sufficient to support
that the offense occurred on or after September 1, 2007; and (3) appellant did not
preserve his rule 702 appellate challenge to the expert’s testimony as not assisting
the jury in deciding the case. We therefore affirm.

                   I.       FACTUAL AND PROCEDURAL BACKGROUND

       Appellant was indicted in two separate indictments with the felony offense
of aggravated sexual assault of a child. In the only case at issue in this appeal,
appellant was alleged to have, on or about November 1, 2007, intentionally and
knowingly caused the contact and penetration of the mouth of Keith Everidge,2 a
child younger than six years of age, who was not the spouse of appellant, by the
sexual organ of appellant.3

       Appellant married Angie Quillens Washington, Keith’s grandmother, in
1994, and she and appellant lived in New Orleans, Louisiana. 4 At the time of
Hurricane Katrina in 2005, appellant and Quillens were separated. After Katrina
hit, Quillens moved to Richmond, Fort Bend County, Texas. Sometime near “the
end of 2007,” appellant moved to Texas and began renting a room from Quillens.
Quillens frequently babysat two of her grandchildren, Keith and his older sister,
when their mother—Quillens’ daughter—was at work. Keith’s birthdate is July
       2
           This is the same pseudonym used by the trial court.
       3
          The second indictment involved contact and penetration of the alleged victim’s anus.
However, after trial, the jury remained deadlocked, and the trial court granted appellant a mistrial
on this indictment.
       4
         The record reflects that Keith’s grandmother and appellant divorced prior to the trial.
For ease of reference, we will refer to her by her maiden name “Quillens.”


                                                 2
28, 2003.

      On Sunday, December 11, 2011, when Keith was eight years old, he made
an outcry to his mother. Keith began the conversation by asking his mother
whether God “would punish a four-year-old kid if he did bad things with a grown
person?” Keith stated that about three or four times when he and appellant were
alone in appellant’s bedroom, appellant put his “private” in Keith’s mouth. At the
time, Keith was four years old and attending pre-K at Mission Bend Elementary.
At trial, Keith also testified he could have been five years old and attending
Barbara Jordan Elementary at the time of the abuse. The day after Keith’s outcry,
his mother left work early, picked Keith up from school, and called police when
they got home.

      Detective Novosad with the Fort Bend County Sheriff’s Office was assigned
the case and scheduled a forensic interview for Keith. This forensic interview,
which Novosad observed, took place on December 13, 2011.              Novosad then
interviewed Keith’s mother and found her story to be consistent. Although a
SANE examination was scheduled, Keith’s mother did not go through with it.

      On December 14, 2011, Novosad and Detective Cox visited appellant at
Quillens’ home. Novosad informed appellant that accusations had been made
against him and requested that appellant go to the Sheriff’s Office for an interview.
Novosad informed appellant that there was no warrant for his arrest. Appellant,
who did not have transportation, rode with the officers in an unmarked vehicle.
Appellant was not handcuffed and rode in the front passenger seat.

      Once at the station, Novosad offered and brought appellant water. Novosad
also brought appellant a hamburger and French fries. The interview took place in
an unlocked room.      After Novosad explained to appellant that he was there
voluntarily and could stop the interview and leave at any time, appellant gave an
                                         3
audio- and videotaped statement.      Appellant never asked police to stop the
conversation.   Appellant’s statement was generally consistent with Keith’s;
however, according to appellant, Keith was the one who “came onto” appellant.
Several times during the interview, Novosad encouraged appellant to tell the truth
so that Novosad could make a recommendation to the prosecutor as to appellant’s
credibility and cooperativeness. Novosad mentioned the possibility of probation to
appellant, but further indicated that he could not say what appellant’s punishment
would be and that the “DA or the judge or the jury [would] make the
recommendation as to what the ultimate disposition of the case is.”

      After the interview was completed, two other officers drove appellant home.
Police kept appellant under surveillance until a warrant for appellant’s arrest was
issued and executed.

      Appellant filed a motion to suppress his recorded statements. The trial court
conducted a hearing pursuant to Jackson v. Denno, 378 U.S. 368 (1964). Novosad
testified for the State; appellant did not testify.     The trial court overruled
appellant’s motion and admitted the statements. The trial court issued findings of
fact and conclusions of law. The trial court concluded that:

      appellant was not in custody when he made the statements;
      appellant had no Fifth Amendment right to an attorney during the
      interview;
      article 38.22 of the Texas Code of Criminal Procedure did not apply;
      appellant’s statements were voluntarily made;
      there was no police coercion in obtaining appellant’s statements; and
      appellant’s statements were the product of his essentially free and
      unconstrained choice.

      At trial, the State presented the following witnesses: Keith’s mother; Officer
Robins with the Fort Bend County Sheriff’s Office, who initially responded to the
                                         4
call from Keith’s mother; Novosad; Quillens; a registered nurse certified as a
pediatric SANE named Jamie Farrell; and Keith.            Appellant rested without
presenting any witnesses.

      The jury found appellant guilty of aggravated sexual assault of a child, and
the trial court assessed punishment at 35 years’ confinement. Appellant timely
appealed.

                               II.      ANALYSIS

A. Appellant’s recorded statements

      In his first two issues, appellant challenges the trial court’s denial of his
motion to suppress his recorded statements provided to police. He argues first that
Novosad made a mistake of law in informing appellant he could receive probation
and this constituted coercion rendering appellant’s statements involuntary.
Second, he argues that the circumstances of appellant’s interview at the Sheriff’s
Office amounted to a custodial interrogation, entitling appellant to the safeguards
of article 38.22 and Miranda v. Arizona, 384 U.S. 436 (1966). We disagree on
both counts.

            1. Standards of review and applicable law

               a. Motion to suppress

      We review a trial court’s ruling on a motion to suppress evidence for an
abuse of discretion. Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005).
We must view the evidence in the light most favorable to the ruling. Wiede v.
State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). At a suppression hearing, the
trial judge is the sole trier of fact and assesses the witnesses’ credibility and the
weight to give witnesses’ testimony. Id. at 24–25. When, as here, the trial court
makes explicit fact findings, we determine whether the evidence, when viewed in

                                         5
the light most favorable to the ruling, supports those fact findings. State v. Kelly,
204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We then review the trial court’s
legal rulings de novo unless its explicit fact findings that are supported by the
record are also dispositive of the legal ruling. Id. We uphold the ruling if it is
supported by the record and correct under any theory of the law applicable to the
case. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003).

      In reviewing a trial court’s suppression ruling, we generally consider only
evidence adduced at the suppression hearing because the ruling was based on it
rather than evidence introduced later. Rachal v. State, 917 S.W.2d 799, 809 (Tex.
Crim. App. 1996); Turner v. State, 252 S.W.3d 571, 577 (Tex. App.—Houston
[14th Dist.] 2008, pet. ref’d). However, as here, when the parties relitigate the
suppression issue at trial, 5 we consider all evidence from both the pre-trial hearing
and the trial in reviewing the trial court’s determination. Gutierrez v. State, 221
S.W.3d 680, 687 (Tex. Crim. App. 2007); Turner, 252 S.W.3d at 577.

              b. Voluntariness

       The statement of an accused may be used against him if it appears it was
freely and voluntarily made without compulsion or persuasion. Tex. Code Crim.
Proc. art. 38.21 (West 2013).          When the voluntariness of a confession is
challenged, the trial court must make an independent determination in the absence
of the jury as to whether the statement was voluntarily made. Id. art. 38.22, § 6
(West 2013); Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995)
(citing Jackson, 378 U.S. at 380). At this hearing, the State has the burden of
proving by a preponderance of the evidence that the statement was voluntary.

      5
         The jury was instructed that it should not consider any statements made by the
defendant unless it believed beyond a reasonable doubt that the statements were voluntarily
made.


                                            6
Alvarado, 912 S.W.2d at 211.         After determining whether a statement was
voluntarily given, the trial court is to provide findings of fact and conclusions of
law as a basis for its determination. Tex. Code Crim. Proc. art. 38.22, § 6.

      A confession is involuntary, within the meaning of the federal due process
clause, only if there was official, coercive conduct of such a nature that any
statement obtained thereby was unlikely to have been the product of an essentially
free and unconstrained choice by its maker. Alvarado, 912 S.W.2d at 211. The
ultimate test is whether the defendant’s will was “overborne” by police coercion.
Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997); Mason v. State,
116 S.W.3d 248, 257 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). To make
this determination, we examine the totality of the circumstances. Delao v. State,
235 S.W.3d 235, 239 (Tex. Crim. App. 2007). The inquiry into whether police
statements overcame the will of the suspect requires a factual determination. See
Creager, 952 S.W.2d at 856.          Because this determination revolves around
historical facts and witness credibility, we give the trial court almost total
deference. Whitmire v. State, 183 S.W.3d 522, 528 (Tex. App.—Houston [14th
Dist.] 2006, pet. ref’d) (citing State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App.
2000)). We do not disturb the ruling unless there is a clear abuse of discretion.
Alvarado, 912 S.W.2d at 211.

             c. Custodial interrogation

      Miranda warnings and article 38.22 requirements are mandatory only when
there is a custodial interrogation. Herrera v. State, 241 S.W.3d 520, 526 (Tex.
Crim. App. 2007). The meaning of “custody” is the same for purposes of Miranda
and article 38.22. Id. The defendant bears the initial burden to prove that a
statement was the product of a custodial interrogation. Id. The State has no
burden to show compliance with Miranda unless and until the record as a whole

                                          7
“clearly establishes” that the defendant’s statement was the product of a custodial
interrogation. Id. (citing Wilkerson v. State, 173 S.W.3d 521, 532 (Tex. Crim.
App. 2005)).

       A trial judge’s ultimate “custody” determination presents a mixed question
of fact and law. Herrera, 241 S.W.3d at 526. Therefore, “[i]n reviewing a trial
court’s ruling on a Miranda-violation claim, an appellate court conducts a
bifurcated review: it affords almost total deference the trial judge’s rulings on
questions of historical fact and on application of law to fact questions that turn
upon credibility and demeanor, and it reviews de novo the trial court’s rulings on
application of law to fact questions that do not turn upon credibility and
demeanor.” Alford v. State, 358 S.W.3d 647, 652 (Tex. Crim. App. 2012). The
objective determination of custody is made on an ad hoc basis, considering the
totality of the circumstances. Herrera, 241 S.W.3d at 532.

       Generally, a person is considered to be in custody for purposes of Miranda
and article 38.22 when: (1) the person is formally arrested; or (2) the person’s
freedom of movement is restrained to the degree associated with a formal arrest.
Nguyen v. State, 292 S.W.3d 671, 677 (Tex. Crim. App. 2009); Sloan v. State, 418
S.W.3d 884, 889 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).                        Since
appellant was not formally under arrest here, the question turns on whether a
reasonable person would have felt that he was not at liberty to terminate the
interview and leave. See Nguyen, 292 S.W.3d at 678; Dowthitt v. State, 931
S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S.
318, 322, 325 (1994)). 6


       6
          The Court of Criminal Appeals has described at least four general situations that may
constitute custody for purposes of Miranda and article 38.22: (1) the suspect is physically
deprived of his freedom of action in any significant way, (2) a law enforcement officer tells the
                                                                                    (continued)
                                               8
           2. The trial court did not abuse its discretion in admitting
              appellant’s statements.
       First, we consider whether the State met its burden to prove by a
preponderance of the evidence that appellant’s statements were voluntary, based on
the totality of the circumstances. Then, there being no dispute that police provided
no Miranda warning here, we consider whether appellant met his burden to clearly
establish his statements were the product of a custodial interrogation.

       The trial court issued the following relevant fact findings:

       on December 14, 2011, appellant agreed to speak with Novosad and
       accepted a ride to the Fort Bend County Sheriff’s Office in Novosad’s
       vehicle;
       Novosad had an unmarked vehicle and appellant rode in the front
       passenger seat;
       appellant was not placed in custody when he rode with Novosad to the
       Sheriff’s Office;
       appellant was not placed in custody prior to or during his time at the
       Sheriff’s Office;
       appellant was told he was not in custody;
       at the Sheriff’s Office, Novosad and Cox interviewed appellant;
       appellant was not deprived of food or water by the officers during the
       time he spent at the Sheriff’s Office; he was provided with food and
       water;
       appellant provided background information and responded to
       questions regarding the sexual abuse allegations;
       appellant admitted to sexually abusing Keith Everidge to the
       detectives;

suspect he is not free to leave, (3) law enforcement officers create a situation that would lead a
reasonable person to believe his freedom of movement has been significantly restricted, and (4)
there is probable cause to arrest the suspect and officers do not tell the suspect he is free to leave.
State v. Ortiz, 382 S.W.3d 367, 376 (Tex. Crim. App. 2012) (citing Dowthitt, 931 S.W.2d at
255).


                                                  9
Novosad found appellant’s admissions consistent with what the victim
reported;
appellant stated that Keith would initiate all sexual contact and
minimized his own role;
after his admissions, appellant was not placed under arrest;
after his admissions, appellant was not placed in custody and was
instead returned to his home;
during the interview process, appellant was never handcuffed,
threatened, or coerced;
neither Novasad nor Cox offered appellant anything to overcome his
free will;
neither Novasad nor Cox promised appellant anything in exchange for
his statement implicating himself in the sexual abuse of Keith;
neither Novasad nor Cox had the authority to make promises to
appellant regarding the disposition of his case;
Novosad told appellant that Novosad was not the person who would
determine the outcome of the case;
Novosad told appellant that Novosad was not the doctor and could not
testify as to any medical records;
appellant was not denied any common courtesy during the interview
process;
appellant appeared coherent and to understand what was happening
during the interview process;
appellant appeared to be cooperative with the officers;
appellant appeared to be fully coherent and not under the influence of
any substance;
appellant graduated from high school and had life experiences that
rendered him capable of exercising his free will; and
appellant’s statements to Novasad and Cox were noncustodial and
were freely and voluntarily made without compulsion.




                                  10
              a. Appellant’s statements were voluntary.

       With regard to voluntariness, appellant primarily emphasizes Novosad’s
statement to appellant that he “might” receive probation if he told the truth.
Appellant argues that Novosad repeatedly conveyed this mistaken belief to
appellant to pressure him and entice his confession, and that this amounted to a
promise upon which he detrimentally relied. 7

       A statement is involuntary if circumstances show that the confession was
induced by a promise of a benefit. See Ramirez v. State, 76 S.W.3d 121, 126–127
(Tex. App.—Houston [14th Dist.] 2002, pet. ref’d). For a “promise” to render a
confession involuntary, the promise must have been positive, made or sanctioned
by someone in authority, and of such an influential nature that it would cause a
defendant to speak untruthfully. Martinez v. State, 127 S.W.3d 792, 794 (Tex.
Crim. App. 2004). General statements regarding how a confession can sometimes
result in leniency do not render a confession involuntary. Muniz v. State, 851
S.W.2d 238, 254 (Tex. Crim. App. 1993). Nor do general offers to help or
expressions of opinion that it would be best for the suspect to tell the truth. Dykes
v. State, 657 S.W.2d 796, 797 (Tex. Crim. App. 1983). Nor do any predictions
about future events involving what might happen if the suspect does or does not
cooperate. Mason, 116 S.W.3d at 260; see Espinosa v. State, 899 S.W.2d 359,
362–64 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d) (holding statement not
       7
          In fact, the revised aggravated sexual assault statute under which appellant was
prosecuted does not provide for community supervision or deferred adjudication where the
victim is younger than age six. See Tex. Penal Code § 22.021(f)(1) (West 2013) (increasing
minimum term of imprisonment to 25 years, effective for offenses committed on or after
September 1, 2007); Tex. Code Crim. Proc. art. 42.12, §§ 3(e)(1), 5(d)(3)(B) (West 2013). The
State points out that Novosad’s statement could have been correct had the prosecutor decided to
proceed with a different charge, such as indecency with a child by contact or exposure, where
deferred adjudication is available as a potential punishment. See Tex. Penal Code § 21.11 (West
2013); Tex. Code Crim. Proc. art. 42.12, § 5(a) (West 2013).


                                              11
rendered involuntary by the mere fact that officer told defendant: “Go ahead and
tell us what happened. Everything will be better for you. You will get less time.”).

      At the most, Novosad provided appellant with an opinion or prediction about
future potential leniency in the form of probation. However, the record also
reflects Novosad repeatedly made clear to appellant that it was not Novosad, but
rather the prosecutor, the judge, and the jury, who controlled how appellant’s case
would be handled and what punishment he might receive.              Novasad further
explained to appellant that the way Novosad could “go to bat” for appellant was to
relay his level of truthfulness and cooperativeness to the prosecutor, which
Novosad indicated he did.      The circumstances also indicate that, despite any
“promise” about probation, during the interview, appellant expressed that “it don’t
look good on [his] end” and that he was “going to jail” and was “F’d.”

      The trial court here heard the evidence, issued extensive factual findings,
and concluded that appellant’s confession was voluntary. We conclude that the
evidence supports the trial court’s factual findings. Because we give almost total
deference to the trial court’s rulings on fact issues regarding confessions that are
supported by the record, we cannot conclude appellant’s will was overborne by any
so-called promise by Novosad. See Mason, 116 S.W.3d at 257. We cannot say
that the trial court clearly abused its discretion in refusing to suppress appellant’s
statements based on involuntariness. See Whitmire, 183 S.W.3d at 528; Alvarado,
912 S.W.2d at 211–12.

      We overrule appellant’s first issue.

             b. Appellant was not in custody.

      With regard to custody, appellant argues that what may have started out as a
voluntary police encounter or interview “eventually turned unto a custodial


                                         12
interrogation.” Appellant maintains that he was a crippled man in his fifties who
had difficulty ambulating, was placed in a small room, and was repeatedly
questioned for an hour and a half. Although appellant acknowledges he was told
he was free to leave at any time, he contends that the detectives blocked his means
of egress and he had to rely on them for transportation home. Appellant also
contends that at some point during the questioning, probable cause to arrest was
established. 8

       Many of the factors emphasized by appellant on appeal 9—placement in an
interview room, repeated questioning regarding a possible offense, being brought
in by police—arise in situations where police conduct an interview at the station.
However, “stationhouse questioning does not, in and of itself, constitute custody.”
Herrera, 241 S.W.3d at 535 (quoting Dowthitt, 931 S.W.2d at 257). Appellant
describes the interview room as small. However, in reviewing the recording of the
interview, which is in the record, the interview room appears well lit with ample
room for a table and chairs as well as the occupants. Further, Novosad explained
that the door to exit the interview room was unlocked from the inside at all times.
There is no evidence that appellant was ever handcuffed, physically restrained, or

       8
         Manifestation of probable cause to arrest does not “automatically establish custody;
rather, custody is established if the manifestation of probable cause, combined with other
circumstances, would lead a reasonable person to believe that he is under restraint to the degree
associated with an arrest.” Turner, 252 S.W.3d at 577.
       9
       During the suppression hearing, appellant’s trial counsel emphasized his involuntariness
argument while deemphasizing his argument based on Miranda:
       I watched the video, once again, and in doing so the coercive nature of the
       questioning sort of stood out in my mind. And as a result of that, I did file a
       Motion to Suppress this morning. And I think the State probably has a pretty
       decent argument. This was not custodial interrogation and that he was not under
       arrest, but some comments were made by Detective Novosad that, again, in
       watching it again last night, I feel perhaps find that the statement wasn’t
       voluntary.


                                               13
Novosad found appellant’s admissions consistent with what the victim
reported;
appellant stated that Keith would initiate all sexual contact and
minimized his own role;
after his admissions, appellant was not placed under arrest;
after his admissions, appellant was not placed in custody and was
instead returned to his home;
during the interview process, appellant was never handcuffed,
threatened, or coerced;
neither Novasad nor Cox offered appellant anything to overcome his
free will;
neither Novasad nor Cox promised appellant anything in exchange for
his statement implicating himself in the sexual abuse of Keith;
neither Novasad nor Cox had the authority to make promises to
appellant regarding the disposition of his case;
Novosad told appellant that Novosad was not the person who would
determine the outcome of the case;
Novosad told appellant that Novosad was not the doctor and could not
testify as to any medical records;
appellant was not denied any common courtesy during the interview
process;
appellant appeared coherent and to understand what was happening
during the interview process;
appellant appeared to be cooperative with the officers;
appellant appeared to be fully coherent and not under the influence of
any substance;
appellant graduated from high school and had life experiences that
rendered him capable of exercising his free will; and
appellant’s statements to Novasad and Cox were noncustodial and
were freely and voluntarily made without compulsion.




                                  10
              a. Appellant’s statements were voluntary.

       With regard to voluntariness, appellant primarily emphasizes Novosad’s
statement to appellant that he “might” receive probation if he told the truth.
Appellant argues that Novosad repeatedly conveyed this mistaken belief to
appellant to pressure him and entice his confession, and that this amounted to a
promise upon which he detrimentally relied. 7

       A statement is involuntary if circumstances show that the confession was
induced by a promise of a benefit. See Ramirez v. State, 76 S.W.3d 121, 126–127
(Tex. App.—Houston [14th Dist.] 2002, pet. ref’d). For a “promise” to render a
confession involuntary, the promise must have been positive, made or sanctioned
by someone in authority, and of such an influential nature that it would cause a
defendant to speak untruthfully. Martinez v. State, 127 S.W.3d 792, 794 (Tex.
Crim. App. 2004). General statements regarding how a confession can sometimes
result in leniency do not render a confession involuntary. Muniz v. State, 851
S.W.2d 238, 254 (Tex. Crim. App. 1993). Nor do general offers to help or
expressions of opinion that it would be best for the suspect to tell the truth. Dykes
v. State, 657 S.W.2d 796, 797 (Tex. Crim. App. 1983). Nor do any predictions
about future events involving what might happen if the suspect does or does not
cooperate. Mason, 116 S.W.3d at 260; see Espinosa v. State, 899 S.W.2d 359,
362–64 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d) (holding statement not
       7
          In fact, the revised aggravated sexual assault statute under which appellant was
prosecuted does not provide for community supervision or deferred adjudication where the
victim is younger than age six. See Tex. Penal Code § 22.021(f)(1) (West 2013) (increasing
minimum term of imprisonment to 25 years, effective for offenses committed on or after
September 1, 2007); Tex. Code Crim. Proc. art. 42.12, §§ 3(e)(1), 5(d)(3)(B) (West 2013). The
State points out that Novosad’s statement could have been correct had the prosecutor decided to
proceed with a different charge, such as indecency with a child by contact or exposure, where
deferred adjudication is available as a potential punishment. See Tex. Penal Code § 21.11 (West
2013); Tex. Code Crim. Proc. art. 42.12, § 5(a) (West 2013).


                                              11
favorable to the verdict and determine, based on that evidence and any reasonable
inferences therefrom, whether any rational factfinder could have found the
elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d
743, 746 (Tex. Crim. App. 2011) (citing Jackson, 443 U.S. at 318–19). We do not
sit as a thirteenth juror and may not substitute our judgment for that of the
factfinder by re-evaluating weight and credibility of the evidence. Isassi v. State,
330 S.W.3d 633, 638 (Tex. Crim. App. 2010).                         Rather, we defer to the
responsibility of the factfinder to fairly resolve conflicts in testimony, weigh the
evidence, and draw reasonable inferences from basic facts to ultimate facts. Id.
The verdict may not be overturned unless it is irrational or unsupported by proof
beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim.
App. 1991). Therefore, if any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt, we must affirm. McDuff v.
State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). The testimony of a child
complainant, standing alone, is sufficient to support a conviction for sexual assault.
See Tex. Code Crim. Proc. art. 38.07 (West 2013); Villalon v. State, 791 S.W.2d
130, 134 (Tex. Crim. App. 1990).

       Keith’s undisputed birthdate is July 28, 2003. The indictment was filed on
May 20, 2013. The indictment and charge here both provide that the offense
allegedly occurred on or about 12 November 1, 2007.13 At the time trial began, July
16, 2013, Keith was nine years old.


       12
           The jury was instructed that this “on or about” language allowed the State to prove a
date other than the one alleged in the indictment as long as the date is prior to the indictment and
within the statute of limitations—although, there is no statute of limitations for aggravated sexual
assault of a child.
       13
             There is no dispute on that date the revised statute applied and Keith had turned four
years old.


                                                 16
       At trial, Keith testified that the abuse may have happened when he was four
years old and attending pre-K at Mission West Elementary. This testimony is
consistent with his outcry to his mother (when Keith was approximately eight and
a half years old) and with his statements during his forensic interview. Apparently,
when his mother asked how Keith knew he was four at the time of the abuse, he
indicated that he remembered he was in pre-K at Mission West Elementary, which
he attended only for his pre-K year. Keith also testified that he was four in 2008.
Keith testified the abuse may have occurred when he was five years old and
attending Barbara Jordan Elementary.               Keith further indicated that the abuse
happened three or four times total, not day after day, but with “just some days” in
between.14 Further, there was evidence from Keith’s mother that appellant moved
into Quillens’ home sometime “at the end of 2007.”

       Despite Keith’s testimony that the sexual abuse occurred at the earliest when
he was four and already attending pre-K taught by Ms. Jones, appellant insists this
is merely “a rough estimation,” and there is equal or nearly equal circumstantial
evidence that the offense date was prior to September 1, 2007. However, appellant
points to no record evidence to support that the abuse instead happened in July or
August 2007 or any other time prior to September 1, 2007. 15 Appellant’s argument
essentially amounts to an attack on the credibility of the State’s evidence, see
Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999), which implicates a
time-frame for the events sometime “at the end of 2007” after appellant had moved


       14
          Keith testified that on at least three occasions when he was alone with appellant on
appellant’s bed in his room, appellant took out “his private” or “what you go pee with” and Keith
had to put appellant’s “private,” which “had hair on it,” in his mouth.
       15
           At trial, defense counsel instead requested language in the charge “giv[ing] the jury the
ability to consider whether Mr. Everidge was, in fact, older than six when this occurred,” which
the trial court denied.


                                                17
into Quillens’ home; after the start of the 2007-2008 school year when Keith was
attending pre-K at age four; and possibly stretching into the time when he was
attending kindergarten at age five. But the factfinder is the sole judge of the
credibility of the witnesses and strength of the evidence, and we must presume that
the factfinder resolved any conflicts in favor of the prevailing party. Bargas v.
State, 252 S.W.3d 876, 887 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
Moreover, we keep in mind the wide latitude given to testimony by child victims
of sexual abuse. Newby v. State, 252 S.W.3d 431, 436 (Tex. App.—Houston [14th
Dist.] 2008, pet. ref’d); see also Bargas, 252 S.W.3d at 888 (victim’s account of
sexual abuse sufficient despite “unsophisticated terminology and rough time-frame
of the events”); Villalon, 791 S.W.2d at 134 (we cannot expect a child victim to
testify with same clarity and ability as mature, capable adults).

       We conclude that when viewed in the light most favorable to the verdict, the
jury as a rational factfinder could have determined that the essential elements of
the offense, including as to when the abuse occurred, were met beyond a
reasonable doubt. See Bargas, 252 S.W.3d at 888–89.

       Because our conclusion supports application of the revised section 22.021,
as effective September 1, 2007, we overrule appellant’s third issue.

C. Appellant did not preserve his objection that SANE expert testimony
   would not assist the jury.

       Appellant argues in his fourth issue that the trial court erred in admitting the
testimony by pediatric SANE Farrell—specifically, that admission of her
testimony when no SANE examination took place violated the third prong of rule
702.

       Texas Rule of Evidence 702, entitled “Testimony by Experts,” governs the
admission of expert testimony, and provides:
                                          18
       If scientific, technical or other specialized knowledge will assist the
       trier of fact to understand the evidence or to determine a fact in issue,
       a witness qualified as an expert by knowledge, skill, experience,
       training, or education may testify thereto in the form of an opinion or
       otherwise.

Tex. R. Evid. 702. 16 A party may challenge expert testimony on at least three
specific grounds. First, a party may allege that the witness does not qualify as an
expert because the witness lacks the requisite knowledge, skill, experience,
training, or education in the subject matter of the expert’s testimony. Vela v. State,
209 S.W.3d 128, 131 (Tex. Crim. App. 2006); see Tex. R. Evid. 702. Second, a
party may allege that the subject matter of the testimony is inappropriate because it
is unreliable. Vela, 209 S.W.3d at 131, 133–34; see Tex. R. Evid. 705(c); Kelly v.
State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992). Third, as here, a party may
allege that the testimony will not assist the factfinder in deciding the case. Vela,
209 S.W.3d at 131; see Tex. Rs. Evid. 401, 402.17 In addition to challenging an
expert on these three grounds, a criminal defendant has a procedural right to voir
dire an expert under rule 705(b) of the Texas Rules of Evidence. Under this rule, a
trial court must grant a party’s “request . . . to conduct a voir dire examination
directed to the underlying facts or data upon which the opinion is based,” and this
examination is conducted outside the presence of the jury. Tex. R. Evid. 705(b).



       16
            Restyled language in the Texas Rules of Evidence is effective as of April 1, 2015. We
refer in this opinion to the language of the Texas Rules of Evidence in effect at the time of trial.
       17
          The three requirements for expert testimony raise distinct questions and issues, and an
objection based on one of these requirements does not preserve error as to another. Turner, 252
S.W.3d at 584 n.5. Similarly, if a party objects to expert testimony without identifying one or
more of these issues, no error is preserved for our review. Gregory v. State, 56 S.W.3d 164, 182
(Tex. App.—Houston [14th Dist.] 2001, pet. dism’d) (holding that “[o]bjections based simply on
Rule 702 and Daubert alone” are general objections that do not preserve error).


                                                19
rendered involuntary by the mere fact that officer told defendant: “Go ahead and
tell us what happened. Everything will be better for you. You will get less time.”).

      At the most, Novosad provided appellant with an opinion or prediction about
future potential leniency in the form of probation. However, the record also
reflects Novosad repeatedly made clear to appellant that it was not Novosad, but
rather the prosecutor, the judge, and the jury, who controlled how appellant’s case
would be handled and what punishment he might receive.              Novasad further
explained to appellant that the way Novosad could “go to bat” for appellant was to
relay his level of truthfulness and cooperativeness to the prosecutor, which
Novosad indicated he did.      The circumstances also indicate that, despite any
“promise” about probation, during the interview, appellant expressed that “it don’t
look good on [his] end” and that he was “going to jail” and was “F’d.”

      The trial court here heard the evidence, issued extensive factual findings,
and concluded that appellant’s confession was voluntary. We conclude that the
evidence supports the trial court’s factual findings. Because we give almost total
deference to the trial court’s rulings on fact issues regarding confessions that are
supported by the record, we cannot conclude appellant’s will was overborne by any
so-called promise by Novosad. See Mason, 116 S.W.3d at 257. We cannot say
that the trial court clearly abused its discretion in refusing to suppress appellant’s
statements based on involuntariness. See Whitmire, 183 S.W.3d at 528; Alvarado,
912 S.W.2d at 211–12.

      We overrule appellant’s first issue.

             b. Appellant was not in custody.

      With regard to custody, appellant argues that what may have started out as a
voluntary police encounter or interview “eventually turned unto a custodial


                                         12
the trial court overruled. At that point, Farrell already had provided detailed
testimony about how SANE examinations are conducted on children, including
assessing injuries to a child’s anus, without objection. Moreover, counsel made no
additional objection as the State continued to question Farrell and she provided
further testimony about SANE examinations, including published studies.

       Under these circumstances, we cannot conclude that appellant’s two isolated
relevance objections to a specific document and to one particular question were
sufficient to preserve an appellate complaint to the entire line of Farrell’s
testimony about SANE examinations.18 See Washington v. State, 449 S.W.3d 555,
565–66 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

       We overrule appellant’s fourth issue.

                                III.       CONCLUSION

       Accordingly, we affirm the trial court’s judgment.




                                                   /s/     Marc W. Brown
                                                           Justice



Panel consists of Justices McCally, Brown, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).

       18
          This court previously has declined to decide whether an objection based on “relevance”
preserves for appeal the issue of whether expert testimony assists the factfinder. See Shaw v.
State, 329 S.W.3d 645, 650 n.2 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). We also do
not decide this issue here because even presuming that is the case, we conclude that appellant’s
objections are not otherwise sufficient to assail Farrell’s testimony on the whole.




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