i          i      i                                                                      i       i      i




                                   MEMORANDUM OPINION

                                           No. 04-09-00068-CV

                               IN THE MATTER OF A.C.T., a Juvenile

                      From the 386th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2008-JUV-01772
                             Honorable Laura L. Parker, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: February 3, 2010

AFFIRMED

           A.C.T. was adjudicated as having engaged in delinquent conduct by committing two counts

of aggravated sexual assault of a child, and was committed to the Texas Youth Commission (TYC),

with a possible transfer to the Texas Department of Criminal Justice (TDCJ), for eleven years. We

affirm the trial court’s judgment.

                              FACTUAL AND PROCEDURAL BACKGROUND

           On July 10, 2008, the State filed an original petition alleging that A.C.T., a fourteen year-old

boy, had engaged in delinquent conduct by committing two counts of aggravated sexual assault on

J.K., a female child younger than fourteen years old, and seeking a determinate sentence. Count I
                                                                                                         04-09-00068-CV



of the petition alleged that, on or about July 17, 2007, A.C.T. intentionally and knowingly caused

the sexual organ of J.K., a child younger than fourteen, to contact the sexual organ of A.C.T. Count

II alleged that, on or about July 17, 2007, A.C.T. intentionally and knowingly caused the sexual

organ of J.K., a child younger than fourteen, to contact the mouth of A.C.T. The State filed a pretrial

“Notice of Intent to Present Outcry Statement” naming J.K.’s mother, Jeanette, as the outcry witness.

After the jury was sworn and opening statements were made, a hearing was held outside the jury’s

presence to determine whether Jeanette or another witness subpoenaed by the defense, Sonya

Vallejo, was the first adult to whom J.K. made an outcry. The trial court ruled that Sonya was the

proper outcry witness. Defense counsel objected that the State had not given the fourteen-day notice

required by the outcry statute as to Sonya, arguing that the “proper predicate had not been laid” for

admission of Sonya’s testimony as the outcry witness.1 A discussion was held on the record during

which the defense conceded it was not claiming unfair surprise or asking for a continuance. The trial

court ultimately ruled that Sonya would not be permitted to testify as the outcry witness. The court

later admitted Sonya’s testimony about what J.K. told her as a prior consistent statement to rebut a

charge of fabrication or improper influence. At the conclusion of the trial, the jury found that A.C.T.

had engaged in delinquent conduct as alleged in both counts, and found that disposition was

required. The court adjudicated A.C.T. as having engaged in delinquent conduct as alleged in both

counts, and entered a disposition order committing A.C.T. to TYC with a possible transfer to TDCJ

for eleven (11) years. A.C.T. now appeals.



         1
             … During trial, both the State and the defense referred to the adult outcry statute, article 38.072 of the Code
of Criminal Procedure, instead of the juvenile outcry statute, section 54.031 of the Family Code. See T EX . C O D E C RIM .
P RO C . A N N . art. 38.072 (Vernon Supp. 2009); T EX . F AM . C O D E A N N . § 54.031 (Vernon Supp. 2009). The two outcry
statutes are interpreted the same. In re Z.L.B., 102 S.W .3d 120, 123 (Tex. 2003) (per curiam).

                                                            -2-
                                                                                           04-09-00068-CV



                                               ANALYSIS

       In three issues, A.C.T. challenges the trial court’s judgment asserting that: (1) his attorney

rendered ineffective assistance by failing to inform A.C.T. of the State’s plea offer and failing to

explain the plea bargain process; (2) the evidence is legally and factually insufficient to support the

jury’s verdict that A.C.T. engaged in delinquent conduct; and (3) the court erred in admitting hearsay

testimony as a prior consistent statement.

Ineffective Assistance of Counsel

       In his first issue, A.C.T. asserts that his trial counsel rendered ineffective assistance by failing

to communicate the State’s plea offer, and by failing to explain the plea bargain process to him or

his mother.    To establish ineffective assistance of counsel, an appellant must prove by a

preponderance of the evidence that: (1) his trial counsel’s performance was deficient; and (2) the

deficient performance prejudiced him to such a degree as to deprive him of a fair trial. Strickland

v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 770 n.3 (Tex. Crim.

App. 1999); Harling v. State, 899 S.W.2d 9, 12 (Tex. App.—San Antonio 1995, pet. ref’d). To

show deficient performance, the first prong of the Strickland standard, A.C.T. must prove that his

counsel’s performance fell below an objective standard of reasonableness and must rebut the

presumption that counsel’s decisions were based on sound trial strategy. Thompson v. State, 9

S.W.3d 808, 812-13 (Tex. Crim. App. 1999).               To satisfy this prong, any allegations of

ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate

the alleged ineffectiveness. Id. at 813. We do not look at isolated acts or omissions to determine

the effectiveness of counsel; rather, we review the totality of the representation. Id.; Harling, 899

S.W.2d at 12. Absent record evidence to the contrary, we must presume that counsel’s conduct fell


                                                   -3-
                                                                                          04-09-00068-CV



within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813-814. With

respect to the second Strickland prong, that counsel’s deficient performance prejudiced his defense,

an appellant must show there is a “reasonable probability that, but for his counsel’s unprofessional

errors, the result of the proceeding would have been different.” Bone v. State, 77 S.W.3d 828, 833

(Tex. Crim. App. 2002) (also stating a “reasonable probability” is one sufficient to undermine

confidence in the outcome). Failure to make the required showing of either Strickland prong,

deficient performance or sufficient prejudice, will defeat a claim for ineffective assistance.

Thompson, 9 S.W.3d at 813.

        A.C.T. presented his claim of ineffective assistance to the trial court in a motion for new trial,

and attached the affidavits of A.C.T. and his mother Rose stating they were never told of any plea

offer, and the affidavit of Sandra O’Neal stating the prosecutor told her the case was not being plea

bargained because “they had not heard back from the defense attorney.” The trial court ordered

A.C.T.’s trial counsel to submit an affidavit in response. In his affidavit, counsel stated that: (1) he

spoke to the prosecutor on several occasions in an attempt to negotiate a favorable plea bargain; (2)

the only plea offer made by the State was for a recommendation of a 10-year determinate sentence

in exchange for a plea of true, and probation was never offered by the State; (3) he discussed the

State’s plea offer with A.C.T. and his mother several times and explained the State had not offered

to recommend probation but he would continue negotiating; (4) he specifically remembered

discussing the plea offer with A.C.T. and his mother on the Saturday before trial at his co-counsel’s

office where they were meeting for last minute trial preparations; (5) he informed A.C.T. and his

mother of the option of pleading true before the court and asking the judge for probation, but also

stated his opinion that due to the severity of the allegations the judge was unlikely to grant probation


                                                   -4-
                                                                                      04-09-00068-CV



without a recommendation from the State; and (6) he recommended that A.C.T. proceed to a jury

trial, at which probation was an option as well as commitment for up to forty (40) years. No hearing

was held on A.C.T.’s motion for new trial, and it was overruled by operation of law.

       A trial court generally abuses its discretion by failing to hold a hearing when a motion for

new trial is presented and raises matters not determinable from the record. Holden v. State, 201

S.W.3d 761, 763 (Tex. Crim. App. 2006). However, a trial court may decide a motion for new trial

based on sworn pleadings and affidavits without hearing oral testimony. Id. (citing Rivera v. State,

89 S.W.3d 55, 58-59 n.9 (Tex. Crim. App. 2002)). We review a trial court’s decision on a motion

for new trial, whether it denies it or allows it to be overruled by operation of law, for an abuse of

discretion. Mallet v. State, 9 S.W.3d 856, 868 (Tex. App.—Fort Worth 2000, no pet.) (citing State

v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993)). We will conclude that the denial of a

motion for new trial was an abuse of discretion only when no reasonable view of the record could

support the denial. Holden, 201 S.W.3d at 763; Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App.

1995). “[I]n the context of a denial of a motion for new trial, a deferential rather than de novo

standard applies to our review of a trial court’s determination of historical facts when that

determination is based . . . solely upon affidavits regardless of whether the affidavits are

controverted.” Holden, 201 S.W.3d at 763 (quoting Charles v. State, 146 S.W.3d 204, 210 (Tex.

Crim. App. 2004)).

       In support of his ineffective assistance claim, A.C.T. relies on Ex parte Lemke, 13 S.W.3d

791, 796-97 (Tex. Crim. App. 2000), in which the Court held that counsel’s failure to inform the

petitioner of the State’s plea bargain offers was ineffective assistance of counsel. Lemke is

distinguishable from A.C.T.’s case, however, because the record in Lemke showed that the State


                                                 -5-
                                                                                      04-09-00068-CV



made two plea offers to petitioner’s counsel, counsel never advised petitioner of the offers, and the

petitioner would have accepted either offer. Id. at 796. Here, the record contains conflicting

affidavits with A.C.T. and his mother stating they were never told of any plea offer by the State, and

A.C.T.’s trial counsel stating that he discussed the State’s offer of a ten-year determinate sentence

with both of them “several times,” and specifically recalling a discussion of the plea offer with

A.C.T. and his mother on the Saturday before trial in the presence of his co-counsel. The trial court

was entitled to resolve the issue on the basis of affidavits alone, and to make a credibility

determination between the conflicting affidavits. Holden, 201 S.W.3d at 763-64. Based on this

record, the court did not abuse its discretion in permitting A.C.T.’s motion for new trial to be

overruled by operation of law. Id. Moreover, given the conflicting affidavits in the record, we

conclude that A.C.T. has failed to meet his burden of proving that his counsel’s performance was

deficient. Strickland, 466 U.S. at 687; Thompson, 9 S.W.3d at 812-13. We overrule A.C.T.’s first

issue on appeal.

Sufficiency of the Evidence for Adjudication

       A.C.T. asserts the evidence is legally and factually insufficient to support the jury’s finding

that he sexually assaulted J.K. When a juvenile challenges the legal sufficiency of the evidence by

a no evidence point, we consider all the evidence in the light most favorable to the finding to

determine whether a rational trier of fact could have found the elements of the offense beyond a

reasonable doubt. In re K.T., 107 S.W.3d 65, 71 (Tex. App.—San Antonio 2003, no pet.). The jury

is permitted to make reasonable inferences from the evidence, and is the sole judge of the witnesses’

credibility and the weight to be given their testimony. Mosley v. State, 983 S.W.2d 249, 254-55

(Tex. Crim. App. 1998). We resolve any inconsistencies in the testimony in favor of the jury’s


                                                 -6-
                                                                                         04-09-00068-CV



verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). In reviewing a factual

insufficiency point, we consider and weigh all the evidence in a neutral light and will set aside the

verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong

and unjust. In re K.T., 107 S.W.3d at 71; Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App.

2008) (appellate court will reverse for factual insufficiency only if the evidence in support of the

verdict, although legally sufficient, is so weak that the verdict is clearly wrong and manifestly unjust,

or if, considering conflicting evidence, the verdict is outweighed by the great weight and

preponderance of the evidence).

        As charged in the petition, to establish that A.C.T. engaged in delinquent conduct by

committing aggravated sexual assault of a child, the State had to prove that he (1) intentionally or

knowingly, (2) caused the sexual organ of the child to contact his sexual organ (Count I), and caused

the sexual organ of the child to contact his mouth (Count II), and (3) the child was younger than

fourteen (14) years of age. TEX . PENAL CODE ANN . § 22.021(a)(1)(B)(iii) (Vernon Supp. 2009). It

is undisputed that the child victim, J.K., was younger than fourteen years when the abuse occurred.

A.C.T. contends on appeal that the evidence was insufficient to prove beyond a reasonable doubt that

the alleged sexual abuse actually happened, and that, if it did happen, he was the perpetrator.

A.C.T.’s defense at trial was that he was innocent, and a family dispute over housing between his

mother and J.K.’s mother caused the allegations to be fabricated, with J.K. being coached to tell the

story of sexual abuse.

        In its case-in-chief, the State first presented the testimony of the child victim, J.K., who was

four years old at the time of the offense and six years old at the time of trial. After an initial period

of hesitation, J.K. testified that on the day her mommy went to the hospital to have a baby, “Church’s


                                                   -7-
                                                                                       04-09-00068-CV



son” was babysitting her and her little brother. They were at Church’s son’s house in his room; he

was laying on the bed and J.K. was sitting on the bed. He told her to take her clothes off and both

of them had their clothes “off a little bit.” J.K. stated that Church’s son touched her with his hand

on the part she goes potty with. She testified she saw his “big thingy” which is the part he goes potty

with. Church’s son put his thingy in between her legs, and his thingy touched on the part she goes

potty with between her legs; their skin was touching and “it hurt real bad.” J.K. was on top of

Church’s son when his thingy touched her thingy and he was doing a movement that made her feel

scared. J.K. testified this happened only once. Church’s son had promised to give her Chuck E.

Cheese tickets if she took her clothes off, so she did.

       J.K.’s mother, Jeanette, testified that her aunt is named Rose and they call her “Church,” and

Church’s son is A.C.T. On July 2, 2007, Jeanette went to the hospital to give birth to J.K.’s youngest

brother, Jesse. At the time, Jeanette and her husband and kids were living in a small house behind

a larger house on a piece of property owned by Jeanette’s grandfather, Mr. Rincon. Rose and A.C.T.

lived on a different street nearby. Jeanette called to ask if A.C.T. could watch J.K. and her brother

while she went to the hospital; A.C.T. came over and babysat J.K. and her brother at Jeanette’s

house. On January 17, 2008, Jeanette learned in a phone call from her mother that J.K. had told the

two young daughters of Sonya Vallejo “something of a sexual nature.” Jeanette asked J.K. about

it, and although she was initially scared, J.K. confirmed the story about sex. Jeanette called the

police that night and J.K. told the officer a similar story of a sexual nature. J.K. was then taken to

ChildSafe where she was interviewed and examined by Dr. Nancy Kellogg. Jeanette testified that

J.K.’s story has been consistent since that day, even though she has been scared during the whole

process. She also explained that J.K. used to call A.C.T. by his first name, but now she refers to him


                                                  -8-
                                                                                       04-09-00068-CV



as “Church’s son” because J.K.’s father did not want the boy’s name used in their household.

Finally, Jeanette testified that Rose had become the owner of the property where their small house

was located after her grandfather died. She denied any hard feelings or arguments with Rose about

the house or making payments for rent or bills. Jeanette stated she told J.K. to “just tell the truth”

in court, and never told J.K. to lie or make up a story about A.C.T.

       Sonya Vallejo testified that her two young daughters used to play with J.K. when they stayed

at their grandmother’s house next door to J.K.’s house. On or about January 2, 2008, her daughters

told her that J.K. had mentioned “sex” to them, and they asked Sonya “what is sex?” The next day,

when Sonya arrived to pick up her daughters after work, J.K. called Sonya over to the fence and

asked if Sonya was her friend and if she could tell Sonya a secret. J.K. made Sonya promise not to

tell anyone because A.C.T. had told her she could not tell anyone. At that point, J.K. began

demonstrating with a funnel-shaped toy, telling Sonya, “this is what A.C.T. makes me do.” J.K. got

on top of the upside down funnel and moved back and forth, explaining, “he makes me go like this;”

she also stated, “and I kiss it.” J.K. stated that her reward was Chuck E. Cheese tickets. Sonya

testified that J.K. told her sometimes it happened at her house when A.C.T. would babysit or when

she was in a bathroom with A.C.T. J.K. told Sonya it happened multiple times in different places.

Sonya urged J.K. to tell her mother, but J.K. became upset. Sonya testified, “I believed her [J.K.]

100 percent. I mean, I don’t think a four year-old would demonstrate and tell me what she was

telling me.” Sonya called and told her sister Monica that night, who in turn called and told Jeanette’s

mother, who then told Jeanette. Sonya testified that Mr. Rincon died in December 2007, and J.K.

told her about this in January 2008. Sonya stated that after J.K.’s allegations against A.C.T., Rose

and Jeanette began arguing about issues related to the big house and the small house on the property


                                                  -9-
                                                                                       04-09-00068-CV



owned by Rose, and there was a break-in at Jeanette’s house, the water was turned off, and eviction

was mentioned.

       Finally, Dr. Kellogg, medical director of ChildSafe, testified that she performed the medical

history interview and physical exam of J.K. Dr. Kellogg’s written report contains drawings which

were created by J.K. during the interview; J.K. was alone with Dr. Kellogg and a medical resident

in the interview room, which is the procedure used to minimize outside influences. Dr. Kellogg

would ask a question, and J.K. would draw her answer while describing in her own words what she

was drawing. Dr. Kellogg testified to the oral statements J.K. made during the interview, which

were noted in quotations in her report. Dr. Kellogg began by asking J.K. if something happened to

her body that made her feel sad or scared or confused, and J.K. answered, “Yes. [A.C.T.] He did

something bad. What big grown-ups do.” When asked what happened, J.K. answered, “It happened

at my house and at his house. This is my house. Mommy had a baby in her stomach and she went

to the doctor with daddy. I was watching TV in the living room. A.C.T. turned off the TV and I was

crying. Then we went to the bathroom.” J.K. drew a picture of her house and the bathroom and

continued explaining, “And he told me to take off my panties. I was lying on the floor. He went up

and down with this;” she drew a picture of A.C.T. and indicated his “thingy” in his front genital area.

J.K. stated, “It was touching me here,” pointing to her own genitals. J.K. continued, “Then milk

came out and went in my mouth. It was yucky. It tasted like cow.” She also said it hurt on her own

genitals and her buttocks because she was laying on the floor. A.C.T. warned her not to tell or she

would not get the Chuck E. Cheese tickets. J.K. stated this happened one or two times at her house,

and between one and five times at A.C.T.’s house. When asked whether the other times were the

same or different than this time, J.K. replied, “Different. He also lickeded [sic] my thingy.” The


                                                 -10-
                                                                                       04-09-00068-CV



physical exam of J.K. was normal, yielding one “nonspecific finding” that could have been caused

by trauma, but also by irritation or inflamation from other causes. Dr. Kellogg testified that it is

common to find no physical evidence of sexual abuse when there is a delay between the abuse and

the outcry. She also testified that the history of the incidents given by J.K. was “more detailed [and]

explicit than average” for this age child. Dr. Kellogg gave her opinion that the sexual abuse did

occur based on J.K.’s level of detail and use of age-appropriate language to describe the incidents.

       The defense witnesses were A.C.T.’s mother Rose, and an expert witness, Dr. Ferrara. Rose

testified that A.C.T. watched the kids at Jeanette’s house on the day Jesse was born. She also stated

that J.K. would spend the night at her house once or twice a month, but would sleep with Rose or

Rose’s daughter; Rose had a policy in the household against closed doors. To Rose’s knowledge,

A.C.T. was never alone in his room with J.K. On the day J.K. made the allegations against A.C.T.,

Jeanette called Rose to come over and J.K. herself told Rose in her own words about the incidents

with A.C.T. Rose was in shock and thought it must be a joke; she stated that A.C.T. is a good boy

who attends a private Christian school. With regard to the existence of a family dispute over the

houses, Rose testified that while her father Mr. Rincon was still alive Jeanette and her family were

living in the small house without paying any rent, taxes, or insurance. Rose stated the small house

was unfinished when they moved in, and Jeanette was supposed to complete the house but never did;

there was only one interior door inside the house and it was the door to the bathroom. Rose bought

the property with the small house and big house from her father in August 2006, before he died in

December 2007. After Mr. Rincon died, but before J.K.’s allegations against A.C.T., Rose told

Jeanette she had to take over payments on the utilities and bills for the small house, but she failed

to pay. In addition, Rose testified that Jeanette asked to move into the big house since she now had


                                                 -11-
                                                                                       04-09-00068-CV



three children, but Rose refused because she did not trust Jeanette to take care of the big house. Rose

testified that none of this had anything to do with A.C.T. Rose stated that she did not know why J.K.

would have lied about A.C.T. Finally, Dr. Matt Ferrara, a forensic psychologist, testified for the

defense that children in the three to five-year age range like J.K. are more likely to make a false

accusation of sexual abuse, and a false outcry is most likely to occur when someone has influenced

the child. Dr. Ferrara stated that an adult may suggest information to the child by the way a question

is asked, and the information may then become part of the story the child comes to believe is the

truth.

         We hold the evidence, when viewed in the light most favorable to the jury’s finding, is

sufficient for a rational trier of fact to have found the elements of aggravated sexual assault as

alleged in Counts I and II beyond a reasonable doubt. The jury had the ability to resolve any

conflicts in the evidence and to assess the witnesses’ credibility and the weight to be given their

testimony. Curry, 30 S.W.3d at 406; Mosley, 983 S.W.2d at 254-55. In addition, the evidence in

support of the jury’s finding that A.C.T. committed aggravated sexual assault as alleged in Counts

I and II is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and

unjust. Lancon, 253 S.W.3d at 705; In re K.T., 107 S.W.3d at 71. We overrule A.C.T.’s challenges

to the sufficiency of the evidence.

Admission of Prior Consistent Statement

         Finally, A.C.T. argues the trial court erred in admitting Sonya Vallejo’s hearsay testimony

as a prior consistent statement “when no express or implied challenge was made to the complainant’s

testimony on the grounds of recent fabrication or improper influence or motive.” As noted, supra,

it was determined that Sonya Vallejo was the proper outcry witness; however, her testimony about


                                                 -12-
                                                                                           04-09-00068-CV



what J.K. told her was not admitted under the outcry statute, but, rather, was admitted as a “prior

consistent statement” under Rule 801(e)(1)(B). TEX . R. EVID . 801(e)(1)(B) (providing that a

statement is not hearsay if the declarant testifies at trial subject to cross-examination, and the

statement is consistent with the declarant’s testimony and “is offered to rebut an express or implied

charge against the declarant of recent fabrication or improper influence or motive”). It is clear from

the record that the declarant, J.K., testified at trial and was cross-examined; further, it is not disputed

that her prior statement to Sonya was consistent with her trial testimony. The only question before

us is whether a charge of recent fabrication or improper influence or motive was raised which would

warrant admission of J.K.’s prior consistent statement under Rule 801(e)(1)(B). We review the trial

court’s ruling that a prior consistent statement is admissible under Rule 801(e)(1)(B) for an abuse

of discretion. Hammons v. State, 239 S.W.3d 798, 806 (Tex. Crim. App. 2007).

        A.C.T. argues on appeal that he made no express or implied charge of recent fabrication or

improper influence, stressing that his attorney’s cross-examination of J.K. contained no reference

to recent fabrication or improper influence that would warrant admission of J.K.’s out-of-court

statement. However, the Court of Criminal Appeals clarified in Hammons that a charge of

fabrication or improper influence “may be subtly implied through tone, tenor, and demeanor,” and

need not be restricted to the specific wording used by counsel. Id. at 799. Because there is no

“bright line” between a challenge to the witness’s memory or credibility and a suggestion of

conscious fabrication, the trial court has substantial discretion in determining whether the tenor of

the questioning reasonably implies a conscious intent to fabricate. Id. at 804-05. In determining

whether the record shows an implied charge of recent fabrication or improper influence was raised,

an appellate court focuses on the “purpose of the impeaching party, the surrounding circumstances,


                                                   -13-
                                                                                        04-09-00068-CV



and the interpretation put on them by the [trial] court.” Id. at 808. In addition to the totality of the

questioning, we may also consider clues from the voir dire, opening statements, and closing

arguments of counsel. Id. The ultimate question is whether, giving deference to the trial judge’s

assessment of tone, tenor, and demeanor, a reasonable trial judge could have concluded that a charge

of recent fabrication or improper influence was raised. Id. at 808-09.

       Here, during opening statements, A.C.T.’s counsel raised the defensive theory of a family

feud over housing arrangements on the property owned by Rose, A.C.T.’s mother, as the background

leading up to J.K.’s allegations. Specifically, counsel stated,

       Because in order to understand these people, in order to understand this situation, you
       don’t just go back to January 24th of this year [2008] when the statements were made
       . . . You’ve got to go back decades, and you need to understand the Rincon family .
       . . Mr. Rincon was a good man . . . when Jeanette and her husband Justin – when they
       [sic] getting ready to get out of the military and Air Force – didn’t have a place to
       live, Mr. Rincon went and . . . built a house in the back of his house . . . he made sure
       that when she got out of the Air Force, she had a place to live. And everything
       between the family was good . . . But that didn’t last forever.

       Unfortunately, in December of 2007, Mr. Rincon passed away. And things began to
       unravel. About a year before he passed away, he sold his house to Rose, to
       [A.C.T.’s] mother, – sold the house that he lived in, in back of which Jeanette[’s] .
       . . family . . . lived. And while Mr. Rincon was alive, Jeanette never had to worry
       about paying rent. She didn’t have to pay utilities, didn’t have to pay taxes, didn’t
       have to pay insurance. But after Mr. Rincon passed away, Rose had a conversation
       with Jeanette. And she let her know that things were going to be different; that she
       was going to have to pay all those things that she never had to pay before. And at the
       same time, Sandra, who’s Jeanette’s mother, . . . began to lean on Rose, began to put
       pressure on her to let . . . Jeanette . . . and [her] family move into the bigger house.
       And there were a couple problems with that. First of all, there was already a relative
       who had been living there . . . Secondly, she simply didn’t trust that Jeanette . . .
       would take care of the house. They hadn’t shown the ability to do that with the little
       house. And after . . . 30 or 45 days, the bills began to roll in. And Rose would get
       notices that nothing was being paid and she got frustrated. And she began to sit
       down with Jeanette and explain to her that . . . she was going to pay her end or they
       were going to talk about Jeanette moving to another place.



                                                  -14-
                                                                                        04-09-00068-CV



        Now, January 24th of this year, 2008, all of this comes to a head. Stories go around
        that [A.C.T.] has been sexually abusing [J.K.]. And, of course, after letting the police
        know, Jeanette goes and talks to Rose and tells her this has been going on. Well,
        Rose continues this – this idea . . . Jeanette’s not paying anything. So she’s going to
        go and have her evicted. And the situation gets worse and worse and unravels and
        unravels. And here we are today.

Counsel also told the jury they would hear evidence from the defense about “the family dynamic”

and “exactly what this family situation was like” to help them understand J.K.’s allegations.

        In addition, before admission of J.K.’s out-of-court statement to Sonya, defense counsel

cross-examined J.K.’s mother, Jeanette, concerning any arguments or bad feelings between her and

Rose about payments for the small house and whether Jeanette and her family would be moving into

the big house. Specifically, counsel asked Jeanette whether she ever paid rent, taxes, or insurance

on the small house while Mr. Rincon was alive, and whether Rose had told her she needed to take

over payment of the bills after he passed away. Counsel also inquired whether Jeanette had

conversations with her mother, Sandra, about moving into the big house after Mr. Rincon’s death.

Jeanette agreed that Rose had talked to her about paying the bills for the small house, but denied

wanting to move into the big house and denied any hard feelings or arguments about these issues.

In addition, defense counsel questioned Jeanette about whether J.K. was “a very obedient child” who

“does pretty much everything you ask her to do” and “what she thinks she needs to do to make you

and your husband happy.” Counsel pointed out that she and her husband had told J.K. not to use

A.C.T.’s real name anymore, and so J.K. stopped using it. On redirect, the State responded by asking

Jeanette whether she had “ever told [J.K.] to lie” or “to create a story” about A.C.T. Jeanette

answered, “No,” and stated that she had only told J.K. to answer honestly and “tell what happened

to her,” and “tell the truth.”



                                                  -15-
                                                                                         04-09-00068-CV



        In ruling that Sonya Vallejo would be permitted to testify to J.K.’s out-of-court statement

about the sexual abuse by A.C.T., the court noted that J.K. had already testified and been subjected

to cross-examination. The court stated the prior consistent statement was being admitted “to rebut

the defense that this is somehow a fabrication or a coaching situation to rebut some family feud

regarding the ownership of these houses.” During cross-examination of Sonya, defense counsel

inquired whether she knew of any arguments between Rose and Jeanette over the housing situation.

Sonya testified that Rose had argued with Jeanette about the houses, there had been a break-in, the

water was turned off, and eviction was mentioned. Defense counsel continued to raise the family

discord theme during his questioning of Rose during the defense case. Rose testified that before

J.K.’s allegations she informed Jeanette to start paying the bills and utilities for the small house, but

Jeanette did not pay them. Rose also stated that Jeanette and her mother asked Rose whether

Jeanette’s family could move into the big house, but Rose refused; there was one argument about

this. When counsel asked Rose whether J.K. “has reasons to lie,” Rose replied she did not know

why J.K. would have lied. Finally, during closing arguments, counsel for A.C.T. again brought up

the family discord and suggested that someone had influenced parts of J.K.’s story. Further, we note

that in his brief A.C.T. concedes that his “defensive theory was, from the beginning of the trial, that

the child had been coached prior (emphasis omitted) to the outcry to Sonya Vallejo . . . in retaliation

for Rose []’s attempts to collect bills owed her by Jeanette . . . .”

        The record shows that during questioning, as well as opening statements and closing

arguments, A.C.T.’s counsel made an implied charge that J.K.’s allegations were the product of

improper influence by Jeanette and her family in retaliation against A.C.T.’s mother, Rose, for the

housing dispute. In admitting the evidence under Rule 801(e)(1)(B), the trial court specifically noted


                                                  -16-
                                                                                                        04-09-00068-CV



the basis was to rebut charges of coaching or fabrication due to a family feud over housing. We

conclude the trial court did not abuse its discretion in admitting Sonya’s testimony about J.K.’s out-

of-court statement under Rule 801(e)(1)(B).2

         Conclusion

         Based on the foregoing reasons, we overrule A.C.T.’s issues on appeal and affirm the trial

court’s judgment.



                                                                 Phylis J. Speedlin, Justice




         2
           … A.C.T. also argues on appeal that the prior consistent statement was not made prior to the time the motive
to fabricate arose, as required by Hammons. See Hammons, 239 S.W .3d at 804. H owever, A.C.T.’s generalized
objection to the prior consistent statement in the trial court did not inform the court of the argument he now raises on
appeal; therefore, this complaint was not preserved. T EX . R. A PP . P. 33.1(a); see Medina v. State, 7 S.W .3d 633, 639
(Tex. Crim. App. 1999) (complaint on appeal must comport with trial objection or nothing is preserved for appeal); see
also Bolden v. State, 967 S.W .2d 895, 899 (Tex. App.— Fort W orth 1998, pet. ref’d) (to complain on appeal that prior
consistent statement is inadmissible because it does not predate motive to fabricate, appellant must have objected on that
basis in trial court); M eyers v. State, 865 S.W .2d 523, 524-25 (Tex. App.— Houston [14th Dist.] 1993, pet. ref’d)
(general hearsay objection under Rule 801 did not preserve complaint on appeal that prior consistent statements
contained in state’s exhibit were made after motive to fabricate arose and thus exhibit was not admissible as prior
consistent statement).


                                                          -17-
