                          NUMBER 13-18-00163-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG


STEVEN DOUGHERTY,                                                         Appellant,

                                              v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 156th District Court
                          of Bee County, Texas.


                        MEMORANDUM OPINION
             Before Justices Benavides, Hinojosa, and Perkes
               Memorandum Opinion by Justice Benavides

      Appellant Steven Dougherty appeals his conviction for aggravated sexual assault

of a child, a first-degree felony. See TEX. PENAL CODE ANN. § 22.021. By eight issues,

Dougherty argues that the trial court erred by admitting and excluding evidence, denying

his right to compulsory process by quashing a defense subpoena, and by denying his

motion for mistrial.   Finally, Dougherty contends that the evidence is insufficient to
support his conviction for a first-degree felony, although he concedes it is sufficient for a

lesser offense. We affirm.1

                                          I.    BACKGROUND

        In June 2016, Dougherty was indicted on one count of aggravated sexual assault

of S.H.L., a child under fourteen years old, that occurred on or about December 16, 2011.

See id. At the time Dougherty allegedly assaulted S.H.L., he was a Catholic priest.

Sometime after his indictment, S.H.L. filed a civil suit seeking damages against

Dougherty, the Diocese of Corpus Christi, and others.

        According to trial testimony by Sheryl Hunt, S.H.L.’s mother, Dougherty owned the

UGN Ranch in Bee County, Texas. He developed the UGN Ranch, including building a

house for himself and the family of his friend and ranch foreman Jimmy Hunt, for a white-

tail deer breeding business. Dougherty and Jimmy had been friends for decades. Their

plan was for Dougherty to put up the capital and when the business began to make a

profit, the men would split the profits.          Until then, Dougherty paid all the expenses,

including Jimmy’s salary, utilities, and a housekeeper for the property, as well as the

expenses of running the business. Jimmy, his wife Sheryl, and their granddaughter

S.H.L. lived on the UGN Ranch.

        Before moving to the UGN Ranch in 2009, Jimmy worked on a different Dougherty

family ranch for Dougherty’s sister who lived out-of-state. Dougherty usually spent one

night a week at Jimmy’s house on his sister’s ranch and they all were considered family



         1 Although the State was granted several extensions of time to file its brief and was advised that

the Court would decide the case based upon the record and briefing before the Court if its brief was not
filed by August 15, 2019, the State elected not to file an appellee’s brief.
                                                    2
according to Sheryl and S.H.L.        Dougherty had known S.H.L. since she was

approximately six years old when Jimmy and Sheryl gained custody of S.H.L. Dougherty

paid for their lawyer in the custody proceedings.

      In October 2013, Dougherty abruptly announced that he was selling the UGN

Ranch and told Jimmy that he and his family would have to move. He provided Jimmy

with a check for $290,000 in severance pay. The Hunts sued to stop the sale and to

prevent their dispossession but were unsuccessful. In December 2013, they moved off

the ranch and into town. They continued their litigation against Dougherty for half of the

business but accepted $100,000 in settlement of their claims in January 2015.

      According to Sheryl’s trial testimony, before the Hunts moved off the UGN Ranch

in December 2013, she was cleaning out a dresser in Dougherty’s room that belonged to

Jimmy’s family when she found a pair of S.H.L.’s panties among Dougherty’s things,

along with a report card and other items that belonged to S.H.L.

      S.H.L. testified that Dougherty raped her before Christmas the year she was

thirteen. She was out of school early and home alone; Sheryl was at the grocery store;

and her father was working. Later on, by reference to school calendars obtained by the

Bee County Sherriff’s Investigator, she narrowed the date down to December 16, 2011,

the day school released early for Christmas break.        She was outside around the

swimming pool with the family dogs when Dougherty came home mid-day, which she said

was unusual. He asked her to come into the house, and when she came in a little later,

he asked her to come into his room because he wanted to show her something. She

testified that she did not want to go, but he grabbed her by the arm, pulled her in, and


                                            3
pushed her into a corner. He began taking her clothes off, threw her down on the bed,

and raped her. During the assault, Dougherty exclaimed, “I’m so angry,” but S.H.L. had

no idea why he said that. Afterwards, she rolled away from him, grabbed her clothes,

ran to her room, and locked herself in her bathroom. She later burned her panties in the

burn barrel outside because they were bloody and she did not want to have to explain

them to anyone. She did not tell anyone what happened until 2015.

       S.H.L. was treated for a urinary tract infection (UTI) in early January 2012.

Physician’s assistant Teralea Jones who treated S.H.L. testified that a UTI is unusual in

a child that age unless there are structural problems with the child’s bladder or urethra or

the child is sexually active. At that time, S.H.L.’s medical records reflect that she was

having flank pain and lower abdominal pain which persisted for at least six weeks.

S.H.L.’s records also reflected that in 2007, she was touched inappropriately by a teen

aged male cousin who also abused her younger brother. S.H.L. testified that her cousin

exposing himself to her did not upset her but that she went to counseling once afterwards.

       S.H.L. began seeing Debra Sublett for counseling in April 2014 after a referral from

Jones. S.H.L. also began medication for anxiety and depression in early April 2014.

She had been treated for anxiety and depression for months without success by Jones at

her family practice clinic. S.H.L. was having digestive issues and was taking medication

for that as well in April 2014. According to Sublett’s records, S.H.L. reported a history of

early abuse by the teenage cousin and that her father had anger issues. In her initial

session, S.H.L. also reported that Dougherty, who used to live with her family, made her

uncomfortable. S.H.L. did not attend therapy regularly. Over fourteen months, she


                                             4
attended approximately ten times. S.H.L. testified that she told Sublett on June 1, 2015,

that Dougherty sexually assaulted her. After her outcry, she did not return to therapy.

       About a week after she told Sublett that Dougherty sexually assaulted her, S.H.L.

told Sheryl and they reported it to the Bee County Sheriff’s Department. Sublett also

reported S.H.L.’s outcry to the Department of Family and Protective Services (DFPS).

At the time she reported it, Sublett believed that S.H.L. was raped when she was fifteen

years old.    She later realized that she made an assumption based upon S.H.L.’s

vagueness about dates. When Sublett reported S.H.L.’s outcry to DFPS, she spoke to

Rhonda Visser.

       Bishop William Michael Mulvey of the Diocese of Corpus Christi testified at trial

that he received a letter from a man who alleged Dougherty abused him when the letter

writer was eight years’ old. As a result of the letter, Bishop Mulvey called Dougherty into

his office and asked him about the letter. Dougherty admitted that for several years

before he became a priest he sexually abused the child.            The meeting between

Dougherty and Bishop Mulvey took place on December 15, 2011. Before the meeting

concluded, Dougherty agreed that he would begin an administrative leave from the

priesthood on December 16, 2011. The terms of the leave were set out in an Agreement

for Leave From Priestly Ministry that both Dougherty and Bishop Mulvey signed on

December 15, 2011. Dougherty was prohibited from celebrating mass publicly, from

dressing in priestly garb, was required to reside at his private residence in Bee County

and was prohibited from leaving the United States.       He was not removed from the

priesthood.    Dougherty admitted at trial that he did not tell anyone about his


                                            5
administrative leave. In March 2014, Dougherty entered into a further agreement with

Bishop Mulvey whereby he would reside at Catholic Solitudes, a religious retreat in Duval

County, based upon Dougherty’s request.

        Dougherty testified at trial and denied sexually assaulting S.H.L. He testified that

the allegations were an attempt by her parents to extort money from him, noting that they

came after settlement of the litigation over his sale of the UGN Ranch that was

substantially less than her parents wanted. He also noted that she brought a civil suit

against him and the Catholic Church seeking money damages.

        Dougherty was originally tried in March 2017, but the jury could not reach a verdict.

Dougherty’s retrial began in February 2018. Dougherty was convicted and sentenced to

sixty years’ imprisonment in the Texas Department of Criminal Justice-Institutional

Division. He appeals his conviction.

                               II.   CONFRONTATION CLAUSE

        By issue one, Dougherty complains that the trial court admitted a signed letter at

trial from a man who alleged Dougherty sexually abused him thirty-five years earlier when

the writer was eight years old. Although the letter writer did not testify at trial, he provided

details of the events, and of his family.          Dougherty originally objected outside the

presence of the jury on multiple grounds including that the witness was not present to be

cross-examined regarding the assertions in the letter.         See U.S. CONST. amend. VI.

Dougherty renewed his objections before the jury, and the trial court again overruled

them.




                                               6
A.     Standard of Review and Applicable Law

       The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses

against him.” Crawford v. Washington, 541 U.S. 36, 42 (2004). The Crawford Court

determined that only those statements that are testimonial are entitled to the protection

of the Confrontation Clause. Id. at 68. “Although we defer to a trial court’s determination

of historical facts and credibility, we review a constitutional legal ruling, i.e. whether a

statement is testimonial or non-testimonial, de novo.” Wall v. State, 184 S.W.3d 730,

742–43 (Tex. Crim. App. 2006).

       Testimonial statements include: “ex parte in-court testimony or functional

equivalents such as affidavits, custodial statements, prior examinations where the

defendant was unable to cross-examine, or similar pre-trial statements that declarants

would reasonably expect to be used prosecutorially.” Almaguer v. State, 492 S.W.3d

338, 356 (Tex. App.—Corpus Christi–Edinburg 2014, pet. ref’d). “Generally speaking, a

hearsay statement is ‘testimonial’ when the surrounding circumstances objectively

indicate that the primary purpose of the interview or interrogation is to establish or prove

past events potentially relevant to later criminal prosecution.” De La Paz v. State, 273

S.W.3d 671, 680 (Tex. Crim. App. 2008) (citing Davis v. Washington, 547 U.S. 813 822–

23 (2006)). When the primary purpose of a statement is something other than criminal

investigation, “the Confrontation Clause does not require such statements to be subject

to the crucible of cross-examination.” Michigan v. Bryant, 562 U.S. 344, 361 (2011). If

the statement is non-testimonial, admitting the statement does not violate the


                                             7
Confrontation Clause.    Id.; see also Trejo v. State, No. 13-10-00374-CR, 2012 WL

3761895, at *2 (Tex. App.—Corpus Christi–Edinburg Aug. 30, 2012, pet. ref’d) (mem. op.,

not designated for publication).

 B.    Discussion

       The letter Daugherty complains of was not written to law enforcement. According

to the writer, the letter was designed for use by Bishop Mulvey within the Catholic Church

for the purpose of protecting others from Dougherty and on the recommendation of the

writer’s therapist as part of his recovery from the abuse. Bishop Mulvey received the

letter in 2011, years before S.H.L.’s outcry. Because the writer’s primary purpose was

not a criminal investigation, the trial court properly overruled Dougherty’s objection. See

Bryant, 562 U.S. at 361; De La Paz, 273 S.W.3d at 680; Lollis v. State, 232 S.W.3d 803,

808–09 (Tex. App.—Texarkana 2007, no pet.) (holding statements made by a five and a

seven-year-old were nontestimonial because the statements were made “in the course of

treatment to deal with behavioral problems and abuse issues”).

       We overrule Dougherty’s first issue.

                                   III.   EVIDENTIARY ISSUES

       By issues two through four, Dougherty complains of the admission of the same

letter discussed previously.   Defense counsel objected to its admission on multiple

grounds including lack of authenticity, hearsay, Rule 403, and the trial court’s failure to

conduct a hearing pursuant to article 38.37. See TEX. CODE CRIM. PROC. ANN. art. 38.37;

TEX. R. EVID. 403, 802, 901.




                                               8
A.     Standard of Review and Applicable Law

       An appellate court reviews a trial court’s evidentiary ruling for an abuse of

discretion and will not reverse that decision absent an abuse of discretion. See Apolinar

v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005); Zuliani v. State, 97 S.W.3d 589,

595 (Tex. Crim. App. 2003); Epps v. State, 24 S.W.3d 872, 879 (Tex. App.—Corpus

Christi–Edinburg 2000, pet. ref’d). “The trial court abuses its discretion when [its]

decision lies outside the zone of reasonable disagreement.”        McCarty v. State, 257

S.W.3d 238, 239 (Tex. Crim. App. 2008).

B.     Extraneous Offense

       1.     Authenticity

       By issue two, Dougherty complains that the trial court admitted the letter without

requiring the State to establish its authenticity. Bishop Mulvey testified that he received

the letter. When he questioned Dougherty about it, Dougherty admitted that the facts

were true to Bishop Mulvey and later admitted they were true during trial. Rule 901

provides that the proponent of evidence “must produce evidence sufficient to support a

finding that the item is what the proponent claims it is.”      TEX. R. EVID. 901.    Rule

901(b)(4) provides examples of evidence that satisfies the requirements to establish

authenticity, which includes: “The appearance, contents, substance, internal patterns, or

other distinctive characteristics of the item, taken together with all the circumstances.”

Id. R. 901(b)(4).

       Dougherty testified there were only a handful of people who knew about the abuse.

Dougherty’s admission that he committed the acts as alleged in the letter combined with


                                            9
the information in the letter that was known to few other than Dougherty sufficiently

authenticated the letter. Id.; see United States v. Arce, 997 F.2d 1123, 1128 (5th Cir.

1993) (holding that contents of a document may be used to authenticate it).

       We overrule Dougherty’s second issue.

       2. Rule 403

       By issue three, Dougherty argues that admission of evidence that he molested a

different child thirty-five years earlier was substantially more prejudicial than probative.

Rule 403 allows a trial court to exclude relevant evidence “if its probative value is

substantially outweighed by a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.” TEX. R. EVID. 403; Robisheaux v. State, 483 S.W.3d

205, 211–12 (Tex. App.—Austin 2016, pet. ref’d).

       A trial court performing a Rule 403 analysis should balance the following factors,

but need not do so on the record:

   (1) the inherent probative force of the proffered item of evidence along with (2)
   the proponent’s need for that evidence against (3) any tendency of the
   evidence to suggest decision on an improper basis, (4) any tendency of the
   evidence to confuse or distract the jury from the main issues, (5) any tendency
   of the evidence to be given undue weight by a jury that has not been equipped
   to evaluate the probative force of the evidence, and (6) the likelihood that
   presentation of the evidence will consume an inordinate amount of time or
   merely repeat evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). Although there

are differences between the two instances of sexual assault and the sexual abuse of the

letter writer that took place years before the assault on S.H.L., there were also similarities.

Dougherty lived with the families of both children and had access to and a relationship

                                              10
with each child before the abuse/assault. He was considered a trusted friend of the

family in both cases. He swore the child to secrecy in each case. He employed the

child’s parent and directly or indirectly provided the family’s home in both cases. These

similarities provided a probative value in addition to Dougherty’s proclivity to have sexual

relations with children. See Bass v. State, 270 S.W.3d 557, 563–64 (Tex. Crim. App.

2008).

         Throughout these proceedings, Dougherty alleged that S.H.L. and her family were

liars and out to get him financially. He denied committing the sexual assault. As a

result, the State had need for the evidence to rebut Dougherty’s claim that S.H.L. lied. In

addition, the receipt of the letter prompted the Catholic Church to remove Dougherty from

priestly duties. See id. That removal became effective on the date S.H.L. was sexually

assaulted. Dougherty’s removal from priestly duties also explains S.H.L.’s testimony that

Dougherty said, “I’m so angry!” while assaulting her. Evidence regarding the letter took

a short amount of the jury’s time, sixteen pages out of the seven-day trial, according to

the reporter’s record. See Gigliobianco, 210 S.W.3d at 642.

         The jury was given an instruction regarding the extraneous offense that advised

them they could not consider that evidence unless they believed beyond a reasonable

doubt that Dougherty committed the extraneous offense. Under these circumstances,

the trial court did not abuse its discretion in allowing the evidence under Rule 403.

         We overrule Dougherty’s third issue.

         3. Article 38.37 Hearing

         By his fourth issue, Dougherty argues that the trial court abused its discretion by


                                             11
failing to hold an article 38.37 hearing outside the presence of the jury. See TEX. CODE

CRIM. PROC. ANN. art. 38.37 § 2-a. Before the first trial that ended in a hung jury, the trial

court convened an article 38.37 hearing to consider the admissibility of the extraneous

offense evidence raised by the letter.         See id.    The purpose of the hearing is to

“determine that the evidence likely to be admitted at trial will be adequate to support a

finding by the jury that the defendant committed the separate offense beyond a

reasonable doubt.” Id. Dougherty admitted to Bishop Mulvey that he committed the

extraneous conduct and the trial court ruled the conduct admissible. Before the second

trial, Dougherty’s counsel requested a second hearing. The trial court declined to hold a

second hearing and adopted the ruling of the previous trial judge. The trial court did not

abuse its discretion by doing so. See Carmichael v. State, 505 S.W.3d 95, 101 (Tex.

App.—San Antonio 2016, pet. ref’d); see also Jurado v. State, No. , 2019 WL 1922757,

at *8 (Tex. App.—El Paso Apr. 30, 2019, no pet.) (holding that trial court did not abuse its

discretion in failing to hold article 38.37 § 2-a hearing where judgment conclusively

established defendant committed extraneous offense). We overrule Dougherty’s fourth

issue.

                            III.   EXCLUSION OF DEFENSE WITNESS

         By issues five and six, Dougherty challenges the trial court’s refusal to allow Visser,

a DFPS witness, to testify that she received a report that S.H.L. was sexually assaulted

when she was fifteen years old. He complains that his right to compulsory process was

violated and that the trial court reversibly erred. We consider both issues together.




                                               12
A.    Standard of Review

      The Sixth Amendment guarantees a defendant the right to offer witness testimony,

to compel the attendance of witnesses, to confront, and to cross-examine witnesses.

See U.S. CONST. amend. VI; Washington v. Texas, 388 U.S. 14, 18–19 (1967).             A

defendant also has a fundamental right to present evidence of a defense as long as the

evidence is relevant and is not excluded by an established evidentiary rule. See Miller

v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001).

      We review a trial court’s ruling on a motion to quash a subpoena under an abuse-

of-discretion standard. See Drew v. State, 743 S.W.2d 207, 225 n.11 (Tex. Crim. App.

1987); Torres v. State, 424 S.W.3d 245, 261 (Tex. App.—Houston [14th Dist.] 2014, pet.

ref’d). The right of compulsory process is not absolute; a defendant carries the burden

of a plausible showing by sworn or agreed facts that the testimony would be material and

favorable. Coleman v. State, 966 S.W.3d 525, 528 (Tex. Crim. App. 1998). A trial court

abuses its discretion by quashing a subpoena when a party has shown clear evidence or

agreed facts that the testimony would be material and favorable to the defense. Id.

B.    Discussion

      Dougherty subpoenaed records from DFPS to reflect the outcry that Sublett

reported confidentially.   The trial court held an evidentiary hearing in which DFPS

presented evidence that the records had been purged in the ordinary course of business

and DFPS could therefore, not authenticate the record.

      Dougherty also subpoenaed Visser for trial and had a copy of the outcry report that

he obtained from the State during criminal discovery. The trial court heard Visser’s


                                          13
testimony outside the jury’s presence. Visser recalled receiving the report but was not

permitted by law to reveal the identity of the caller although she admitted to the trial court

that the reporter was not the victim of the assault. The trial court therefore determined

that Visser was not an outcry witness and had no personal knowledge. In addition, she

was unable to authenticate the report because she could not compare it with the one

maintained by DFPS to ensure it had not been edited. Although Dougherty argued that

Visser could impeach Sublett’s testimony by reciting what Sublett told her, the trial court

concluded that Visser’s testimony was hearsay, because Visser could only repeat what a

third person told the caller. See TEX. R. EVID. 602, 802; Cheek v. State, 119 S.W.3d 475,

479 (Tex. App.—El Paso 2003, no pet.).

        Although a defendant has the constitutional right to present a defense and to

compel witness testimony, that testimony must be admissible. See Miller, 36 S.W.3d at

507; Cheek, 119 S.W.3d at 483 (refusing to allow defendant to present hearsay evidence

as defense). Because Visser’s testimony was hearsay not subject to an exception, the

trial court did not abuse its discretion by quashing the subpoena for Visser.

        We overrule Dougherty’s fifth and sixth issues.

                                       IV. MISTRIAL

        By issue seven, Dougherty argues that the trial court reversibly erred by denying

his motion for mistrial after a State’s witness testified that Dougherty had been offered a

polygraph examination. Before trial, the trial court granted the defense motion in limine

that there be no mention of a polygraph examination being offered or refused before the

jury.


                                             14
A.    Standard of Review and Applicable Law

      We review a trial court’s decision to deny a mistrial under an abuse of discretion

standard, and we review the facts in the light most favorable to the trial court’s ruling.

Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004); see Russeau v. State, 171

S.W.3d 871, 885 (Tex. Crim. App. 2005); Ketchum v. State, 199 S.W.3d 581, 599 (Tex.

App.—Corpus Christi–Edinburg 2006, pet. ref’d). We uphold the trial court’s ruling if that

ruling was within the zone of reasonable disagreement. Wead, 129 S.W.3d at 129;

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). A

mistrial is required only in “extreme circumstances” in which the prejudice is otherwise

incurable. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Generally,

whether the error was such that it could not have been cured by an instruction and

whether the prosecutor acted in reckless disregard of such error are “essentially factual

questions.” State v. Lee, 15 S.W.3d 921, 926 (Tex. Crim. App. 2000).

B.    Discussion

      During defense questioning of Bee County Sheriff’s Investigator Steve Linam,

counsel questioned the thoroughness of Investigator Linam’s investigation and whether

he had done any investigation into S.H.L.’s reputation for truthfulness. During his cross-

examination of S.H.L., defense counsel also questioned her about occasions on which

she had not told her gynecologist that she was sexually active with her boyfriend and a

time when she was much younger when she claimed to be dating Justin Bieber.

      Defense counsel also asked Investigator Linam, “didn’t you want to see if . . .

[Dougherty] was truthful and had a reputation for being truthful?” Investigator Linam


                                           15
responded, “I offered him a polygraph.” Defense counsel moved for a mistrial and noted

that Investigator Linam violated a motion in limine. The trial court sua sponte instructed

the jury:

       I’m going to instruct you that that response was completely improper on the
       part of this witness. None of that is admissible, whether it happened or not.
       It’s not to be considered by you for any purpose. Mr. Linam and I are going
       to have a discussion sometime later outside the presence of the jury. But
       for right now, you can ask your next question. Your motion is denied.

Defense counsel moved to strike Investigator Linam’s response from the record which

the trial court granted. He renewed his motion for mistrial. The trial court reminded him

that his motion was denied and he should ask his next question.

       Dougherty argues that Investigator Linam’s answer was so prejudicial that the trial

court’s instruction could not have cured the prejudice. However, there are numerous

cases in which a witness gave a nonresponsive answer that mentioned that a polygraph

test was offered or taken but did not mention the results. In each case, the reviewing

court held there was no error in failing to grant a mistrial. See, e.g., Richardson v. State,

624 S.W.2d 912, 914–915 (Tex. Crim. App. 1981) (no error where complainant stated in

a nonresponsive answer to prosecutor’s question that she had taken a polygraph exam);

Hannon v. State, 475 S.W.2d 800, 803 (Tex. Crim. App. 1972) (no error where witness

gave nonresponsive answer that indicated he had been put on a lie detector machine);

Martines v. State, 371 S.W.3d 232, 252 (Tex. App.—Houston [1st Dist.] 2011, no pet)

(holding that instruction to disregard was sufficient where mention of polygraph offer was

inadvertent and did not mention result); Barker v. State, 740 S.W.2d 579, 583 (Tex.

App.—Houston [1st Dist.] 1987, no pet.) (no error where officer’s nonresponsive answer


                                             16
to prosecutor’s question that the defendant had been offered a polygraph exam).2 In

each of these cases, the courts held that an instruction to disregard the answer was

sufficient to reduce any persuasive effect that the answers might have had in the minds

of the jurors. Because we presume that jurors follow the instructions given by trial courts,

the presumption may only be overcome by evidence that the jury disregarded the judge’s

instructions. Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005); James v.

State, 89 S.W.3d 86, 90 (Tex. App.—Corpus Christi–Edinburg 2002, no pet). Dougherty

has failed to provide any evidence to demonstrate that the jury ignored the trial court’s

instruction.

        We overrule Dougherty’s seventh issue.

                                IV.    SUFFICIENCY OF THE EVIDENCE

        By his eighth issue, Dougherty challenges the sufficiency of the evidence to

support his conviction for a first-degree felony. The indictment alleged that Dougherty

sexually assaulted S.H.L., a child younger than fourteen years of age. See TEX. PENAL

CODE ANN. § 22.021(e). Dougherty specifically challenges the evidence to support the

element of age. He argues that S.H.L. was fifteen, not thirteen when the rape occurred,

which would change the offense from a first-degree felony to a second-degree felony.

Id.; c.f. id. § 22.011(f) (sexual assault of a child younger than seventeen is a second-



        2   See Roper v. State, 375 S.W.2d 454, 457 (Tex. Crim. App. 1964) (no error where officer disclosed
that defendant had been given a polygraph exam where answer was nonresponsive and did not reflect the
result of the test); Richardson v. State, 823 S.W.2d 710, 712 (Tex. App.—San Antonio 1992, pet. ref’d) (no
error where officer’s nonresponsive answer to prosecutor’s question that defendant submitted to polygraph
exam); see also Williamson v. State, No. 13-12-294-CR, 2013 WL 3894982, at *2 (Tex. App.—Corpus
Christi–Edinburg July 25, 2013, no pet.) (mem. op., not designated for publication); Whatley v. State, No.
13-07-568-CR, 2009 WL 1607813, at *4 (Tex. App.—Corpus Christi–Edinburg Jan. 29, 2009, pet. ref’d)
(mem. op., not designated for publication).
                                                    17
degree felony).

A.     Standard of Review

       The Court applies the sufficiency standard from Jackson v. Virginia, which requires

the reviewing court to “view[] the evidence in the light most favorable to the prosecution,”

to determine whether “any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 912 (Tex.

Crim. App. 2010) (citing Jackson, 443 U.S. 307, 319 (1979)). When a reviewing court

views the evidence in the light most favorable to the verdict, it “is required to defer to the

jury’s credibility and weight determinations because the jury is the sole judge of the

witnesses’ credibility and the weight to be given their testimony.”         Id. at 899. “The

reviewing court must give deference to the responsibility of the trier of fact to fairly resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)

(citing Jackson, 443 U.S. at 318–19). If the record supports conflicting inferences, we

presume that the fact finder resolved the conflict in favor of the prosecution and defer to

that resolution.   Garcia v. State, 367 S.W.3d 684, 686–87 (Tex. Crim. App. 2012);

Brooks, 323 S.W.3d at 899.

B.     Discussion

       S.H.L. testified that she and her family lived at the UGN Ranch while she was in

sixth through eighth grade. Dougherty was there several times a week and weekends.

S.H.L. testified she was thirteen years old when Dougherty sexually assaulted her. She

did not recall telling Sublett how old she was when Dougherty sexually assaulted her or


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that she told Sheryl or Jimmy how old she was when the assault occurred. When she

talked to Investigator Linam, she told him she was thirteen when it happened. She

recalls being baptized several months after Dougherty assaulted her. She wanted to be

baptized, in part to be cleansed.     S.H.L. was baptized in April 2012 just after her

fourteenth birthday. During cross-examination, S.H.L. admitted that when she spoke to

Investigator Linam, she told him that the assault had taken place “at Christmas about two

years ago,” and he calculated that she would have been fifteen years old. She corrected

him at some point and told him that she was thirteen years old.

      Investigator Liman testified at trial that S.H.L. and Sheryl came into the Beeville

Sherriff’s Department to report the assault on June 15, 2015. During that report, S.H.L.

reported a series of touchings beginning when she was seven years old that culminated

with the sexual assault. She described Dougherty touching her on her leg when she was

seven, trying to put his hand up her shirt, and touching her breasts over her bra when she

was ten. S.H.L. pinned down the date of the sexual assault to a date between school

letting out for Christmas break and Christmas day the year she was thirteen years old.

S.H.L. first described the assault as taking place a couple of years ago.          When

Investigator Liman asked if she was fifteen at the time, she corrected him and told him

she was thirteen. She repeated to him at least four times during the interview that she

was thirteen when Dougherty assaulted her. Investigator Liman further testified that,

especially when there is a delayed report of a crime, a complaining witness generally is

not precise about the date unless it is on a holiday or a day with special significance.

The witness can usually narrow it down by season or what grade they were in and then


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the investigator will work with them to attempt to narrow down the time frame further.

According to Investigator Liman, it was important to determine how old S.H.L. was at the

time because it affected the classification of the assault. Investigator Liman determined

that S.H.L.’s school let out at noon on December 16, 2011 for Christmas break when

S.H.L. was thirteen.

      Another witness, Bob Patten, a friend of both Dougherty and the Hunts, described

a change in S.H.L.’s behavior from a friendly, sociable girl to one who became withdrawn

at least six months or so before Dougherty sold the UGN Ranch in 2013.

      S.H.L.’s aunt Tammi Lynn Johnson, testified that when she saw S.H.L. in

September 2011, S.H.L. was her usual sociable, outgoing self. There was a reception

at the house and S.H.L. was mingling with the guests, walking around, and making sure

everyone had what they needed. She wanted to sing at the reception but did not have

the opportunity.

      Johnson next saw S.H.L. in May of 2012 and found her to be different, “very

depressed, very clingy.” She did not want to do the things that S.H.L. liked to do. S.H.L.

was not eating and did not talk. According to Johnson, S.H.L. was much changed from

six months earlier.    When Johnson saw S.H.L. again in September 2012, S.H.L.

appeared even more depressed.

      Sheryl testified that Dougherty was part of the family and that on Christmas Eve,

she cooked a big family meal and the family celebrated Christmas. In 2009, their first

year at the UGN Ranch, Dougherty was with them and again in 2010, but he did not join

them for Christmas Eve in 2011 and 2012. He did not tell her that he would not be there;


                                           20
he just did not come. Sheryl noticed a change in S.H.L. around Christmas 2011; she

became withdrawn. S.H.L. was having abdominal and back pain, but Sheryl could not

get a medical appointment until January 2012. Sheryl took her to see the doctor where

they learned she had a UTI. S.H.L. started staying in her bedroom a lot and did not want

to go places. S.H.L. had nightmares and was sick with headaches and vomiting. She

wanted to sleep with Sheryl and even volunteered to sleep on the floor in their room.

S.H.L. quit ballet, gymnastics, swimming, and did not sing anymore.

       Sublett testified that S.H.L. made an outcry to her on June 1, 2015 that Dougherty

sexually assaulted her. In her notes, Sublett wrote, “S.H.L. reported that on one occasion

when she was still 15 years old, that while her parents were not home . . . [Dougherty]

‘raped her.’” Her notes also reflect that on June 15, 2015, Sublett made the mandated

call to the Texas Abuse Hotline. Sublett explained that she believed that the assault

must have happened shortly before S.H.L. began seeing her, and she assumed that

S.H.L. was fifteen at the time of the assault but did not know. S.H.L.’s outcry happened

in the last fifteen minutes of their session, and S.H.L. only told her the details of the actual

assault. Sublett hoped to clarify the remaining details at their next meeting. Sublett did

not realize her assumption until later. Sublett’s records also included notes from a call

from Sheryl dated June 9, 2015, “Mrs. Hunt reported to me, also, that this incident had

likely happened when S.H.L. was fifteen years old.”

       S.H.L. testified she was thirteen when Dougherty sexually assaulted her. The jury

resolved the contradictions in the evidence as it is required to do and there is sufficient

evidence in the record to support its resolution. See Garcia, 367 S.W.3d at 686–87;


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Brooks, 323 S.W.3d at 899.

       We overrule Dougherty’s eighth issue.

                                    V.    CONCLUSION

       We affirm the judgment of the trial court.


                                                       GINA M. BENAVIDES,
                                                       Justice

Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
12th day of September, 2019.




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