                                                                                         PD-1340-15
                                                                        COURT OF CRIMINAL APPEALS
                                                                                        AUSTIN, TEXAS
                                                                     Transmitted 11/13/2015 11:58:38 PM
                                                                       Accepted 11/17/2015 10:35:43 AM
                                                                                         ABEL ACOSTA
                           CASE NO. PD-1340-15                                                   CLERK

              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS


                         STEPHEN CLARK WEBB,
                                     Appellant
                                  v.
                          THE STATE OF TEXAS,
                                     Appellee


       Petition from Cause No. 01-14-00174-CR, in the First Court of Appeals,
                             Sitting in Houston, Texas
          Appealed from Cause No. 1389676 in the 337th District Court
                            of Harris County, Texas


    APPELLANT’S PETITION FOR DISCRETIONARY REVIEW



                                             JOHN S. COSSUM
                                             TSB # 04854500
                                             440 Louisiana, Suite 900
                                             Houston, TX 77002
                                             Telephone: (713) 222-6134
                                             Facsimile: (713) 222-6144
                                             E-Mail: jcossum@cossumlaw.com

                                             ATTORNEY FOR PETITIONER,
                                             STEPHEN CLARK WEBB

ORAL ARGUMENT REQUESTED




    November 17, 2015
               IDENTITY OF PARTIES AND COUNSEL

APPELLANT:               STEPHEN CLARK WEBB

    Trial Counsel:       John S. Cossum
                         440 Louisiana, Suite 900
                         Houston, TX 77002
                         Telephone: (713) 222-6134
                         Facsimile: (713) 222-6144
                         E-Mail: jcossum@cossumlaw.com

    Appellate Counsel:   John S. Cossum
                         TSB # 04854500
                         440 Louisiana, Suite 900
                         Houston, TX 77002
                         Telephone: (713) 222-6134
                         Facsimile: (713) 222-6144
                         E-Mail: jcossum@cossumlaw.com

APPELLEE:                STATE OF TEXAS

    Trial Counsel:       Devon Anderson - Harris County District Attorney
                         Markey Stroud - Assistant District Attorney at trial
                         1201 Franklin, Suite 600
                         Houston, Texas 77002
                         Telephone: (713) 222-6134
                         Facsimile: (713) 222-6144
                         Stroud_eric@dao.hctx.net

    Appellate Counsel:   Devon Anderson - Harris County District Attorney
                         Eric Kugler - Assistant District Attorney on appeal
                         1201 Franklin, Suite 600
                         Houston, Texas 77002
                         Telephone: (713) 222-6134
                         Facsimile: (713) 222-6144
                         kugler_eric@dao.hctx.net

TRIAL COURT:             337th District Court of Harris County
                         Hon Renee Magee

                                  ii
                                        TABLE OF CONTENTS

                                                                                                            Page

IDENTITY OF PARTIES AND COUNSEL.                                                                   ........... ii.

TABLE OF CONTENTS.                                                                                 .......... iii.

INDEX OF AUTHORITIES.                                                                              .......... iv.

STATEMENT REGARDING ORAL ARGUMENT.                                                                 ............ 1

STATEMENT OF THE CASE.                                                                             ............ 1

PROCEDURAL HISTORY.                                                                                ............ 2

GROUNDS PRESENTED FOR REVIEW.                                                                      ............ 3

ARGUMENT....................................................................................................... 4

      FIRST GROUND FOR REVIEW ............................................................ 4

             The admission of hearsay statements by the trial court that
             were attributed to the Jane while she was sleeping was
             error. The Court of Appeals erred in not reversing the trial
             court and compounded its error when it ruled that even if
             there was error in the trial court’s ruling, it was harmless
             error.

             I.      Reason for Review...................................................................... 4

             II.     Statement of Facts. ...................................................................... 5

             III.    Argument and Authorities........................................................... 6




                                                         iii
    SECOND GROUND FOR REVIEW . ....................................................... 8

               The admission of hearsay statements made by Jane in
               response to questioning from her boyfriend after being
               awakened from a nightmare was error and not properly
               analyzed by the First Court of Appeals.

               I.       Reason for Review...................................................................... 8

               II.      Statement of Facts. ...................................................................... 9

               III.     Argument and Authorities......................................................... 10

     THIRD GROUND FOR REVIEW.......................................................... 13

           The admission of the trial court not granting a motion for
           mistrial on the issue of the State violating the motion in limine
           was error. The Court of Appeals erred in not reversing the trial
           court.

          I.          Reason for Review....................................................................... 14

          II.         Statement of Facts. ....................................................................... 14

          III.        Argument and Authorities............................................................ 15

PRAYER FOR RELIEF . ................................................................................. 17

CERTIFICATE OF COMPLIANCE................................................................. 17

CERTIFICATE OF SERVICE. ......................................................................... 18

APPENDIX                ................................................................................................... 19




                                                                iv
                                    INDEX OF AUTHORITIES

Cases                                                                                                    Page

Apolinar v State, 155 S.W.3d 184 (Tex Crim App. 2005) . ................................. 9, 10, 11

Commonwealth v Almeida, 433 Mass. 717, 746 N.E.2d 139 (2001)...... 6, 11, 33

Godfrey v. State 258 Ga. 28, 365 S.E.2d 93,94 (1998) ........................... 7, 11, 13

Mayfield v. State, 114 Tex.Crim 425, 25 S.W.2d 833 (1930).4, 5, 6, 7, 10, 11, 12

McCarty v. State 257 S.W.3d 238, 240 (Tex. Crim. App. 2008) ............ 9, 10, 11

Mosley v. State 983 S.W.2d. 249 (Tex. Crim. App. 1998). ......................... 13, 16

State v. Alan, 12 Neb. App. 261, 670 N.W.2d 814, 824 (2003). ............. 7, 11, 13

State v. Posten 302 N.W.2d 638 (Minn 1981)......................................... 7, 12, 13

Webb v. State, 01-14-00174-CR (Tex.App.-Houston [1st Dist.] 4-2-2015). ....... 2

Webb v. State, 01-14-00174-CR (Tex.App.-Houston [1st Dist.] 9-10-2015). . 2, 8

Statutes and Rules

TEX. PENAL CODE §22.011. ................................................................................. 1

TEX. PENAL CODE §21.11. ................................................................................... 1

TEX.R. APP. PROC. 66.3(c) ............................................................................. 5,10

TEX.R. APP. PROC. 66.3(b).............................................................................. 5,10

TEX.R. EVID. 803(2).......................................................................................... 5




                                                        v
              STATEMENT REGARDING ORAL ARGUMENT


       Appellant, Stephen Clark Webb (“Webb”), respectfully requests that this

Court grant oral argument. His petition raises an issue of first impression before

this court, so oral argument would be helpful to assist the Court in deciding the

issue . Additionally, the First Court of Appeals’ opinion did not address the issues

as thoroughly as the law requires, and oral argument is necessary for a full and fair

resolution.

                         STATEMENT OF THE CASE

       This case arises from a jury conviction of Webb for Indecency with a Child

(Tex. Penal Code §22.011) arising from a grand jury indictment charging

Appellant with Aggravated Sexual Assault of a Child (Tex. Penal Code §21.11).

Sentence was assessed at 10 years in the Texas Department Of Criminal Justice,

probated, and a $10,000.00 fine. Appeal was timely perfected raising eight grounds

of error.

       The 1st Court of Appeals (“the court of appeals”) affirmed the conviction,

erroneously holding that statements made by the Complainant (“Jane”) in her sleep

constituted admissible hearsay as excited utterances.        The court of appeals

additionally and erroneously held that statements made by Jane about the dream in



                                         1
response to questioning right after being awakened also constituted admissible

hearsay as excited utterances.

                    STATEMENT OF PROCEDURAL HISTORY

       On April 2, 2015, the court of appeals affirmed Mr. Webb’s conviction and

sentence. Webb v. State, 01-14-00174-CR (Tex.App.-Houston [1st Dist.]

4-2-2015).    A motion for rehearing was filed May 1, 2015. The motion for

rehearing was denied on May 28, 2015. A motion for rehearing en banc was filed

July 7, 2015. On September 10, 2015, the court of appeals withdrew its original

opinion and substituted a new opinion and judgment affirming Mr. Webb’s

conviction.     Webb v. State, 01-14-00174-CR (Tex.App.-Houston [1st Dist.]

9-10-2015). As part of that decision, the Court also denied the motion for rehearing

en banc as moot. Mr. Webb now petitions this Court to exercise its discretionary

review to reverse and vacate the First Court of Appeals’ opinion, and remand to the

trial court for a new trial.




                                         2
                        GROUNDS FOR REVIEW

1.   The admission of hearsay statements by the trial court that were
     attributed to Jane while she was sleeping was error. The court of
     appeals erred by failing to analyze the issue of error by the trial court
     and instead ruling that even if the admission of the testimony was error,
     it was harmless error.

2.   The admission of hearsay statements as excited utterances made by Jane
     in response to direct questioning from her boyfriend about her “sleep
     talk” was error and was improperly analyzed by the First Court of
     Appeals.

3.   The trial court’s failure to grant a motion for mistrial after the State
     blatantly violated an order in limine was reverable error that the court
     of appeals failed to properly review.




                                     3
                                    ARGUMENT

                        FIRST GROUND FOR REVIEW:

          The admission of hearsay statements by the trial court that
          were attributed to Jane while she was sleeping was error.
          The court of appeals erred by failing to analyze the issue of
          error and instead ruling that even if the admission of the
          testimony was error, it was harmless error.

      The first issue raised in Webb’s appeal was the error committed by the trial

court in admitting statements made by Jane while she was asleep. Webb’s second

issue on appeal was the trial court’s admission of statements made by Jane in

response to questions after being awakened from her sleep. The court of appeals, in

affirming Webb’s conviction, refused to rule on Webb’s first issue, deciding

instead that any error was harmless, relying in large measure on its erroneous

finding that the evidence made the subject of Webb’s second issue on appeal was

admissible (discussed below). In refusing to find the trial court’s admission of

such evidence error, the court of appeals’ failed to consider at least one prior ruling

of this Court finding statements attributed to witnesses inadmissible where it

appeared the witness was not fully conscious when the statements were made. See

Mayfield v. State, 114 Tex. Crim 425, 25 S.W.2d 833 (1930).

I.    Reason for Review

      The Court should grant discretionary review on Webb’s First Ground for

Review because the court of appeals’ refusal to make a specific ruling on the

                                          4
admissibility of “sleep talk” conflicts with the prior ruling from this Court in

Mayfield v. State, 114 Tex. Crim 425, 25 S.W.2d 833 (1930). TEX.R.APP. PROC.

66.3(c). Additionally, the specific issue of “sleep talk” as an excited utterance has

never been specifically addressed by the Court or analyzed in light of Mayfield and

therefore is proper for consideration by the Court. TEX.R.APP. PROC. 66.3(b).

II.   Statement of Facts

      The State called as its first witness in the case against Mr. Webb the former

boyfriend of Jane, Arman Jahangiri (hereinafter “the boyfriend”). The boyfriend

testified that sometimes when they were sleeping, Jane would “have very extreme

nightmares”, (4 RR 26), that she would become “very frantic, inconsolable...as if

she had seen a ghost” (4 RR 28) and that this happened while she was still asleep

(4 RR 29). The boyfriend then testified, over Webb’s hearsay objection, that Jane

would cry out in her sleep “No, don’t, Steve. Don’t. Steve, no, no.” (4 RR 30).

This testimony came after the court, in ruling on the Webb’s hearsay objection,

found that while the statement was hearsay, it qualified as an excited utterances

under Rule 803(2) of the Texas Rules of Evidence as “a statement relating to a

startling event or condition made while the declarant was under the stress of

excitement caused by the event or condition.” TEX.R. EVID. 803(2).




                                         5
III.   Argument and Authorities

       In Mayfield v. State, 114 Tex. Crim 425, 25 S.W.2d 833 (1930), this Court

held that statements made by the Complainant against Mayfield while unconscious

in a hospital bed were improperly admitted by the trial court. Specifically, the

Court held that where “there was no question or controversy over the fact that at

the time the statements were made, the witness was unconscious... (t)he learned

trial judge fell into error in admitting the statements.” Mayfield at 426. Logically,

in comparing the facts of Mayfield to the case at bar, there is no discernable

difference between the reliability of statements made while unconscious and

statements made while asleep in terms of reliability. In refusing to follow this

Court’s ruling in Mayfield, the appeals court also failed to recognize the sound

reasoning of Courts in other jurisdictions which have considered and ruled against

the admissibility of “sleep talk” as an excited utterance. In Commonwealth v

Almeida, 433 Mass. 717, 746 N.E.2d 139 (2001), in circumstances extremely

similar to the case at bar, the statement “Jorge, get off of me. Jorge, get off of me”

made by the Complainant while sleeping was found by the appeals court to be

improvidently admitted into evidence because “(a)dmitting hearsay evidence of

statements made while a person is sleeping, so-called "sleep talk", would run

counter to one of the central principles governing the admissibility of evidence,

namely, that the proffered material is reliable.” Id. at 719. In State v. Alan, the

                                          6
Nebraska court of appeals also excluded “sleep talk” evidence claimed to be

admissible excited utterance hearsay, noting that “expressions of a person made

while asleep are not admissible as spontaneous statements, since they proceed from

an unconscious and irresponsible condition. It has been said that such expressions

have little or no meaning, are as likely to refer to unreal facts or conditions as to

things real, and are wholly unreliable” State v. Alan, 12 Neb. App. 261, 670

N.W.2d 814, 824 (2003). Similar results were reached by courts considering the

issue of sleep talk in Georgia and Minnesota. See Godfrey v. State 258 Ga. 28, 365

S.E.2d 93,94 (1998) (sleep talk not sufficiently reliable to merit admission in

evidence); State v. Posten 302 N.W.2d 638 (Minn 1981)(while dreams are in some

sense connected to waking hour’s desires and anxieties, there is no indication that

dream sequences mirror actual events”). In the instant case, the same reasoning

applied by this Court in Mayfield should have been applied to the case against Mr.

Webb. If the court had done so, the statements of Jane while asleep would not

have been admitted as evidence and caused harm to Mr. Webb.

      The court of appeals decision, however, improperly avoids ruling on the

issue of “sleep talk” by deciding instead that even if the trial court was wrong in

admitting “sleep talk” testimony, there was no harm to Mr. Webb given other

evidence in the case to substantiate his guilt. That other evidence, however, in



                                         7
reading the Court’s opinion, is heavily predicated on the Courts erroneous ruling in

denying Mr. Webb’s second point of error. Specifically, in reading the court of

appeals’ September 10, 2015 opinion, it is clear that the court’s ruling concerning

the admissibility of Jane’s answers to questions posed about her “sleep talk”

factored heavily into the court’s finding that any error arising from the admission

of “sleep talk” addressed in Mr. Webb’s first ground for review was harmless:...

      “The statements made after she awoke provide much more detailed and
      direct evidence about what she was dreaming and why. Thus, any tendency
      of the sleep talk to reveal the contents of the dream is harmless because this
      other evidence provides stronger and more detailed evidence of the same
      matter asserted.” Webb v. State, 01-14-00174-CR (Tex.App.-Houston [1st
      Dist.] 9-10-2015) p. 9

The problem with this line of thinking, however, and as set out more fully in the

argument pertaining to Mr. Webb’s Second Ground for Review, is that the

inadmissibility of Jane’s “sleep talk” should logically render the statements made

in response to questions about the inadmissible “sleep talk” inadmissible as well.

The court’s harmless error analysis with regard to “sleep talk” is therefore fatally

flawed because the major factor relied upon by the court in finding any error with

regard to the admission of “sleep talk” harmless is the improper admission of

Jane’s other hearsay statements.    If the testimony of the boyfriend about the

statements made in his presence by Jane is excluded, the case becomes a swearing

match ostensibly between Jane, on one hand, and Webb and Jane’s entire

                                         8
immediate family on the other. It is unreasonable to conclude a jury would have

believed Jane over Mr. Webb and Jane’s entire family but for the error in allowing

Jane’s improper hearsay statements relating to her “sleep talk” into evidence. As

such, this Court’s determination as to the propriety of admitting Jane’s “sleep talk”

statements is appropriate and necessary.

                      SECOND GROUND FOR REVIEW:

         The admission of hearsay statements as excited utterances
         made by Jane in response to direct questioning from her
         boyfriend about her “sleep talk” was error and was
         improperly analyzed by the First Court of Appeals.

      The hearsay statements of Jane, in response to questioning about who she

was referring to in her dream when she called out the name “Steve”, were

improperly admitted by the trial court as excited utterances over Mr. Webb’s

hearsay objection. In relying on Texas cases, some by this Court, including

Apolinar v. State, 155 S.W.3d 184 (Tex Crim App. 2005) and McCarty v. State

257 S.W.3d 238, 240 (Tex. Crim. App. 2008) the court of appeals failed to

properly distinguish the issue being presented from those in Apolinar and McCarty

and, in doing so, committed error.

I.    Reason for Review

      The Court should grant discretionary review on Webb’s Second Ground for

Review because the court of appeals’ ruling that excited utterances made by Jane in

                                           9
response to questioning about her “sleep talk” mistakenly relied on this Courts

prior rulings in Apolinar v State, and McCarty v. State, and issued an opinion in

conflict with this Courts ruling in Mayfield v. State, 114 Tex. Crim 425, 25 S.W.2d

833 (1930). TEX.R.APP. PROC. 66.3(c).          Additionally, the specific issue of

alleged excited utterances in response to questioning a witness about “sleep talk”

has never been specifically addressed by the Court or analyzed in light of Mayfield

and therefore is proper for consideration by the Court. TEX.R.APP. PROC.

66.3(b).

II.   Statement of Facts

      After Jane’s boyfriend was allowed to testify over Mr. Webb’s hearsay

objection that Jane would cry out in her sleep “No, don’t, Steve. Don’t. Steve,

no, no.” (4 RR 30), the State continued questioning the boyfriend about a

conversation he had with Jane after waking her up one time. As with the Court’s

ruling on Mr. Webb’s hearsay objection to Jane’s sleep talk, the Court allowed this

testimony from the boyfriend as an excited utterance. After the objection was

overruled, the boyfriend testified that on one occasion, after waking Jane up from a

“nightmare” and questioning her about who she was referring to in her dream, Jane

told him that the Steve she was referring to was “the person her mother had




                                        10
married after her marriage with her father”, and that “he had done things to her and

he had touched her where he shouldn’t have”. (4 RR 34).

III.   Argument and Authorities

       The issue before this court is not whether statements like those attributed to

Jane would qualify as admissible excited utterances in circumstance such as those

that existed in Apolinar and McCarty, but rather whether it is proper for such

statements to be admitted where made in reference to comments made during

“sleep talk”. In the case at bar, the statements admitted were in response to a

specific question posed by Jane’s boyfriend about a name Jane had called out

during “sleep talk”. Additionally, and significantly, the record shows that the

statement admitted by the Court was being made in response to a question posed to

Jane about another statement made by Jane during a dream, not an actual

occurrence. Given the unreliability of “sleep talk” testimony as articulated so well

by courts in Massachusetts, Nebraska, Georgia and Minnesota in Almeida, 746

N.E.2d 139 (2001), Alan, 670 N.W.2d 814 (2003), Godfrey 365 S.E.2d 93 (1998)

and Posten 302 N.W.2d 638 (Minn 1981), all of which were decided using the

same rationale applied by this Court in Mayfield, it would defy logic that a court

could properly decide that statements made about a dream are admissible while

statements made during a dream are not. The inherent lack of reliability and


                                         11
inadmissibility of “sleep talk” statements articulated so well in the above cited

court opinions call equally into question the reliability and therefore admissibility

of statements made in response to questions concerning the inadmissible “sleep

talk”. The boyfriend’s testimony indicates the question he asked was about a

dream, not a real event, and there is no indication in the record that the response

from Jane pertained to anything but the dream. By ignoring the origin of the

questioning leading to Jane’s statements, the court of appeals failed to properly

analyze the issue and therefore erroneously upheld the trial court’s admission of

Jane’s statements.

      In rendering its opinion, however, the court failed to recognize that Jane’s

alleged excited utterances made in response to questioning from her boyfriend

were necessarily predicated on the “sleep talk” giving rise to the questioning in the

first instance. If the sleep talk was not admissible, how would the responses to

questions arising from the sleep talk be admissible? Not only would the answers to

questions lack context, but the questions are predicated on inadmissible hearsay

(the sleep talk).    As such, a fair evaluation of the merits of Mr. Webb’s appeal

requires this Court to evaluate whether “sleep talk” and statements made in

response to questions about “sleep talk” can qualify as excited utterances in light of

this Court’s ruling in Mayfield v. State, 114 Tex. Crim 425, 25 S.W.2d 833 (1930)


                                         12
and the many well reasoned opinions addressing the issue from Massachusetts,

Nebraska, Minnesota and Georgia cited above, including Almeida , 746 N.E.2d 139

(2001), Alan, 670 N.W.2d 814 (2003), Godfrey 365 S.E.2d 93 (1998) and Posten

302 N.W.2d 638 (Minn 1981).

                         THIRD GROUND FOR REVIEW:

           The trial court’s failure to grant a motion for mistrial after
           the State blatantly violated an order in limine was reverable
           error that the court of appeals failed to properly review.

        Prior to trial, the trial court granted Webb’s motion in limine prohibiting the

State from inquiring if Webb had provided illegal drugs to any person other than

Jane.     The State violated the motion in limine and Webb requested a mistrial

which was denied by the trial court. Relying on Mosley v. State 983 S.W.2d. 249

(Tex. Crim. App. 1998), the court of appeals did not think the State’s misconduct

warranted a mistrial and in doing so, committed error.

I.      Reason for Review

        The Court should grant discretionary review on Webb’s Third Ground for

Review because the court of appeals misapplied the factors set forth in Mosley v.

State (“the Mosely factors”) in finding that the trial court did not error in refusing

Mr. Webb’s request for a mistrial in response to the State’s brazen disregard of an

order in limine granted before trial. Specifically, the prosecutor was not only


                                           13
forbidden, but agreed, she would not seek to introduce evidence indicating Mr.

Webb had allegedly provided illegal substances to other people to bolster any

claims he had provided drugs to Jane as part of the State’s proof in the trial

alleging Ms. Webb had committed aggravated sexual assault of a child.

II.   Statement of Facts

      Prior to the trial, the trial court entered an order in limine prohibiting the

State from inquiring from any witness as to whether Appellant “ever smoked

marihuana or provided any illegal drugs to any persons”, excepting from its ruling

the issue of whether Appellant provided any drugs to Jane (CR 116-121 at 118).

The fact the State understood the order and was willing to abide by the order was

underscored on the record by the prosecutor while the motion was being

considered by the following exchange:

      MS. STROUD:        “Your honor, certainly during the case-in-chief I don’t
                         anticipate... supplying the son with drugs would be
                         relevant”

      THE COURT:         “Okay, So - - and if something comes up where you feel
                         something like that has become relevant in the case-in-
                         chief, please approach before you go into that. So, any
                         extraneous offense is granted except for the 38.14 - -

      THE COURT:         If there’s a question as to whether it is admissible or if
                         you know there is going to be a question, just please
                         approach the bench.



                                        14
       MS STROUD:        At this time, Your Honor, as far as criminal conduct, the
                         only thing that I am anticipating would come in in my
                         case in chief is the indecency case.

(2 RR 18-19)

       Thereafter, despite the State’s representations to the trial court, and the

specific instructions from the trial court, the prosecutor, out of the blue, and

without any notice to the defense, or approaching the bench, asked Jane: “Do you

know if the defendant gave Justin drugs?”        (4 RR 104).       Although   Webb

immediately objected and the objection was sustained before the witness could

answer, the prosecutor glib response during a bench conference called by the Court

that she “should have approached” and “was sorry”. The Court then instructed the

jury to disregard the prosecutor’s question, but denied Webb’s motion for a

mistrial (4 RR 104-105). The insincerity of the prosecutor’s apology, however, is

underscored by the fact that, during the bench conference, she did not even make

an attempt to explain any arguable basis for the question under the Rules of

Evidence or how she would have justified trying to go into the subject matter had

she actually asked to approach as she indicated she should have.

III.   Argument and Authorities

       In affirming Mr. Webb’s conviction, the court of appeals misapplied the

Mosely factors articulated by this court in determining whether a trial court abused


                                         15
its discretion in denying a motion for mistrial: 1) the severity of the misconduct; 2)

the measures adopted to cure the misconduct; and, 3) the certainty of the

defendant’s conviction absent the misconduct. Mosley v State 983 S.W.2d at 259-

260. While the court of appeals properly characterized the misconduct as severe, it

in failed to properly evaluate the sufficiency of the trial court’s curative efforts or

the certainty of Mr. Webb’s conviction absent the misconduct. Surprisingly, in its

opinion, the court of appeals actually utilized Jane’s testimony that Mr. Webb had

supplied her drugs to mitigate the importance of the State’s violation of the order

in limine. To the contrary, Jane’s testimony about being given drugs by Mr.

Webb, rather than mitigating the State’ violation, underscored the importance of

having the order in limine in place and provided insight into the severity of the

State’s motivation in violating it.    Additionally, in analyzing the third Mosely

issue, the court of appeals pointed to the boyfriend’s testimony concerning the

statements made by Jane to him (testimony this petition is asking this court to find

inadmissible) and the testimony of a prosecution expert whose testimony was

completely neutralized by that of a defense expert. Finally, the appeals court

claimed “state and federal investigations provided additional evidence of drugs in

the home”, a claim for which there is no support in the record. As such given the




                                          16
appellate courts erroneous application of the Mosely factors to the facts of the case,

a review of their analysis by this Court is appropriate.

                              PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Mr. Webb respectfully

requests that this Court grant his Petition for Discretionary Review, order briefing

from all parties on the important issues raised herein, and that, after hearing oral

argument, reverse and vacate the judgment of the First Court of Appeals and

remand the case to the trial court for a new trial.

                                                Respectfully submitted,

                                                 /s/ John S. Cossum
                                                JOHN S. COSSUM
                                                TSB # 04854500
                                                440 Louisiana, Suite 900
                                                Houston, TX 77002
                                                Telephone: (713) 222-6134
                                                Facsimile: (713) 222-6144
                                                E-Mail: jcossum@cossumlaw.com

                                                ATTORNEY FOR PETITIONER,
                                                STEPHEN CLARK WEBB


                       CERTIFICATE OF COMPLIANCE

      As required by Texas Rule of Appellate Procedure 9.4 (i)(3), I certify that
the document is in a 14 point font and that the number of words is 2703.

                                                 /s/ John S. Cossum
                                                JOHN S. COSSUM


                                           17
                         CERTIFICATE OF SERVICE

      As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d) and

(e), I certify that a true and correct copy of the foregoing document has been

delivered to all parties which are listed below via electronic transmission on this

12th day of November, 2015.

      Eric Kugler
      Assistant District Attorney on Appeal
      TBC # 796910
      Harris County District Attorney’s Office
      1201 Franklin, Suite 600
      Houston, Texas 77002
      Telephone: (713) 755-5826

      ATTORNEY FOR RESPONDENT,
      STATE OF TEXAS
                            /s/ John S. Cossum
                           JOHN S. COSSUM
                           State Bar No. 04854500
                           440 Louisiana, Suite 850
                           Houston, Texas 77002
                           Telephone: (713) 222-6134
                           Facsimile: (713) 222-6144
                           E-Mail: jcossum@cossumlaw.com

                                      ATTORNEY FOR PETITIONER,
                                      STEPHEN CLARK WEBB




                                        18
                     CASE NO. PD-1340-15
             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS


STEPHEN CLARK WEBB,
                Appellant
vs.

THE STATE OF TEXAS,
                 Appellee


                         APPENDIX
            PETITION FOR DISCRETIONARY REVIEW


Index:
1        Court of Appeals Judgment dated April 2, 2015
2-18     Court of Appeals Opinion dated April 2, 2015
19       Court of Appeals Judgment dated September 10, 2015
20-34    Court of Appeals Opinion dated September 10, 2015
35-43    4 RR 26 - 4 RR 34




                                  19
                                    JUDGMENT

                                 Court of Appeals
                             First District of Texas
                                   NO. 01-14-00174-CR

                         STEPHEN CLARK WEBB, Appellant

                                            V.

                           THE STATE OF TEXAS, Appellee

     Appeal from the 337th District Court of Harris County. (Tr. Ct. No. 1389676).

       This case is an appeal from the final judgment signed by the trial court on
February 19, 2014. After submitting the case on the appellate record and the arguments
properly raised by the parties, the Court holds that the trial court’s judgment contains no
reversible error. Accordingly, the Court affirms the trial court’s judgment.

       The Court orders that this decision be certified below for observance.

Judgment rendered April 2, 2015.

Panel consists of Chief Justice Radack and Justices Brown and Lloyd. Opinion delivered
by Justice Brown.
Opinion issued April 2, 2015.




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00174-CR
                            ———————————
                     STEPHEN CLARK WEBB, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 337th District Court
                           Harris County, Texas
                       Trial Court Case No. 1389676


                                  OPINION

      A jury convicted Stephen Webb of indecency with a child.1 In eight issues,

Webb contends that the trial court erred by admitting inadmissible evidence and

denying his motion for a mistrial. We affirm.


1
      TEX. PENAL CODE ANN. § 21.11 (West 2011).
                                     Background

       In 1996, Webb dated (and later married) the mother of the complainant,

Jane, 2 and moved into Jane’s home. Jane was ten years old at the time. After

several years, Webb divorced Jane’s mother and moved out of the house. As an

adult, Jane disclosed to her boyfriend, her family, and police that Webb had

sexually assaulted her when she was a child. Webb was arrested for aggravated

sexual assault of a child. 3

       Before trial, the trial court granted a motion in limine preventing the State

from soliciting evidence that Webb had given anyone other than Jane illegal drugs.

At trial, the State called Jane, who recounted that when she was a child Webb had

physically assaulted her, performed inappropriate massages on her, made her mow

the lawn topless, shown her pornography, given her drugs and alcohol, and

performed various other indecent acts. The State also asked Jane if Webb ever

gave his younger son any illegal drugs—a question that violated the motion in

limine. Webb objected before Jane could answer; the court sustained the objection

and instructed the jury to disregard the question. Webb moved for a mistrial; the

court denied his motion.

       The State also called Jane’s boyfriend, who recounted that Jane, now an

adult, would have terrible nightmares. During the nightmares, she would cry out

2
       We refer to the complainant by this pseudonym to protect her identity.
3
       TEX. PENAL CODE ANN. § 22.021 (West Supp. 2014).

                                            2
Webb’s name. He described how she eventually told him about the abuse. Webb

objected to this testimony as inadmissible hearsay; the court overruled the

objection.

      The State’s other witnesses included the investigating police officer and a

child-abuse expert. The State then rested.

      During his case-in-chief, Webb called Jane’s mother to testify about Webb’s

behavior during their marriage and to discredit portions of Jane’s story. On cross-

examination, the State asked Jane’s mother whether Webb was in another

relationship when he began a relationship with her. The State also asked about

Webb’s relationships with his two sons from an earlier marriage. Webb objected to

the relevance of this evidence; the court overruled his objections.

      Webb called several other witnesses and then rested. The jury convicted him

of a lesser-included offense, indecency with a child. Punishment was assessed at

ten years’ incarceration, suspended for ten years’ community supervision. Webb

timely appealed.

                              Evidentiary Objections

      In his first five issues, Webb contends that the trial court improperly

admitted hearsay testimony and irrelevant evidence.




                                          3
A.    Standard of review

      We review a trial court’s ruling on the admission or exclusion of evidence

for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App.

2011); Walker v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009,

pet. dism’d). We will uphold the trial court’s ruling unless it falls outside the “zone

of reasonable disagreement.” Tillman, 354 S.W.3d at 435; Walker, 321 S.W.3d at

22.

      To preserve the issue of erroneously admitted evidence, a party must make a

timely and specific objection and receive a ruling from the trial court. TEX. R. APP.

P. 33.1; Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003). The party

must object every time the evidence is offered. Ethington v. State, 819 S.W.2d 854,

858 (Tex. Crim. App. 1991).

B.    Sleep talking

      In his first issue, Webb contends that the trial court erred by admitting

testimony from Jane’s boyfriend that during violent nightmares she would cry out,

“No, don’t, [Webb]. Don’t. [Webb], no, no.” Webb objected to these statements as

hearsay; the trial court overruled this objection.

      First, we must determine whether somniloquy falls under the rule against

hearsay. Hearsay is any out-of-court statement “offered in evidence to prove the

truth of the matter asserted.” TEX. R. EVID. 801(d). In Texas, the rule covers both



                                           4
explicit assertions and “any matter implied by a statement, if the probative value of

the statement as offered flows from declarant’s belief as to the matter.” TEX. R.

EVID. 801(e). The statements Jane made while asleep do not explicitly assert

anything but do imply that, in her dream, she was in conflict with Webb, or at least

a man sharing Webb’s name. Accordingly, we conclude that, under the

circumstances of this case, these statements were implied hearsay. See Drone v.

State, 906 S.W.2d 608, 611–12 (Tex. App.—Austin 1995, pet. ref’d); Mosley v.

State, 141 S.W.3d 816, 830 (Tex. App.—Texarkana 2004, pet. ref’d).

      Second, we must determine whether the statements qualify for one of the

exceptions to the rule against hearsay. In this case, the State successfully argued to

the trial court that the sleep statements were excited utterances. An excited

utterance is a “statement relating to a startling event or condition made while the

declarant was under the stress of excitement caused by the event or condition.”

TEX. R. EVID. 803(2).

      The statements in question were made during or immediately after Jane’s

nightmare. Jane was highly agitated. That many years had passed since the alleged

abuse does not affect our analysis; “under the excited-utterance exception, the

startling event may trigger a spontaneous statement that relates to a much earlier

incident.” McCarty v. State, 257 S.W.3d 238, 240 (Tex. Crim. App. 2008). These

sleep statements meet the requirements for an excited utterance.



                                          5
      Webb cites numerous courts outside of Texas that have held that sleep

statements are far too unreliable to be admissible. Notably, many of these cases

analyzed the issue either in the context of a hearsay exception for “trustworthy”

statements 4 or by considering objections to both hearsay and relevance. See Com.

v. Almeida, 746 N.E.2d 139, 141 (Mass. 2001) (“Admitting hearsay evidence of

statements made while a person is sleeping, so-called ‘sleep talk,’ would run

counter to one of the central principles governing the admissibility of evidence,

namely, that the proffered material is reliable.”); In re Interest of Jamie P., 670

N.W.2d 814, 824 (Neb. Ct. App. 2003) (statements of sleeping child were not

product of conscious thought and therefore not excited utterances and not

sufficiently trustworthy to be admitted under guarantee-of-trustworthiness hearsay

exception); Godfrey v. State, 365 S.E.2d 93, 93 (Ga. 1988) (sleep statements do not

qualify for hearsay exception for certain statements with “sufficient indicia of

reliability”). Other courts have refused to make such a broad, bright-line rule. See

Gardiner v. State, 444 S.E.2d 300, 304 (Ga. 1994) (weight and credibility of sleep

talk is province of jury); State v. Posten, 302 N.W.2d 638, 641 (Minn. 1981) (sleep

talk may be reliable under some circumstances but not others). In some


4
      In Texas, the excited-utterance exception does not require a special guarantee of
      trustworthiness. Compare TEX. R. EVID. 803(2) with TEX. R. EVID. 803(5)–(8),
      (24) and TEX. CODE CRIM. PROC. ANN. art. 38.072 § 2(b)(2) (West Supp. 2014).
      Of course, a statement may meet the excited-utterance requirements yet be
      inadmissible under other rules or statutes.

                                          6
circumstances, a sleeping declarant may be uniquely reliable. Deborah Rosenthal,

Voices from Darkness: The Evidentiary Admissibility of Sleep Talk, 30 U.S.F.L.

REV. 509, 517 (1996) (“Clearly, somniloquy resulting from psychic conflict or

environmental or post-traumatic stress could be useful as evidence of events

causing conflict and stress, such as murder or sexual abuse.”).

      A review of Texas court opinions has produced only one case on point:

Mayfield v. State, 25 S.W.2d 833, 834 (Tex. Crim. App. 1930). In that case, the

victim either jumped or was thrown out of an automobile. She was found

unconscious and remained in that state until she expired. The Texas Court of

Criminal Appeals ruled that several statements she made while unconscious were

inadmissible hearsay under a common-law rule that when a “declaration is offered,

it must appear that the declarant was mentally conscious.” Id.

      We conclude that Mayfield does not apply to this case because the common-

law rule that it relied upon has been supplanted by the Texas Rules of Evidence.

The statements in question fall within the express requirements for the excited-

utterance exception. The excited-utterance exception articulated in the Rules is

“based on the assumption that the declarant is not, at the time of the statement,

capable of the kind of reflection that would enable him to fabricate information.”

Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). A sleeping

declarant would not be capable of such reflection.



                                         7
      Whether sleep talk is nevertheless unreliable is ultimately a question of (1)

whether, under Rule 402, such evidence has any probative value and, if yes, (2)

whether, under Rule 403, the probative value is substantially outweighed by the

unfairly prejudicial or confusing effect of sleep statements. See Almeida, 746

N.E.2d at 142 (“That [declarant] was having some form of dream about the

defendant, the contents of which are entirely unknown, sheds no light on whether

she had actually been sexually assaulted by him. Furthermore, the prejudicial

nature of such evidence far outweighs its minimal probative value.”); Godfrey, 365

S.E.2d at 94 (1988) (“The child’s outcry in his sleep is no more reliable than the

dream itself.”). But we do not address the reliability of sleep talk because Webb

objected under Rule 802, which prohibits hearsay, not under Rule 402 or Rule 403.

      We overrule Webb’s first issue.

C.    Explanation of nightmare

      In his second issue, Webb contends that the trial court erroneously admitted

hearsay statements that Jane made to her boyfriend about the nightmares shortly

after awakening from one. The trial court admitted the statements as excited

utterances.

      Before asking the witness to disclose what Jane said, the State laid the

following predicate for the excited-utterance exception:

      Q:      And when you woke [Jane] up, was she calm?



                                         8
      A:     The exact opposite of calm.

      Q:     Describe how she was.

      A:     She was in full tears, still pushing me away . . . .

Over Webb’s objection, the prosecutor asked what Jane said “while she was still

upset and crying.” The witness responded:

      A:     She—she said that—I kept asking what had he done to you, and
             she was crying at this point. I was—I was crying as well, but
             she said that he had—that he had—he had done things to her
             and he had touched her where he shouldn’t have, and we both
             started crying and—

      Q:     Now, when you say “he,” who was she talking about?

      A:     [Webb].

      Jane made statements about the abuse she had just relived in her nightmare.

Given that she had just woken up from her nightmare and was “upset,” “crying,”

“in full tears,” and “the exact opposite of calm,” the trial court did not abuse its

discretion by concluding that she was under the stress of this event when making

these statements. See McCarty, 257 S.W.3d at 240 (statements made when re-

startled may be excited utterances).

      Webb argues that a nightmare cannot be a startling event for purposes of the

excited-utterance exception. He distinguishes this case from Apolinar v. State, 155

S.W.3d 184 (Tex. Crim. App. 2005). There, the declarant was beaten unconscious;

he spent four days either unconscious or heavily medicated, and thus did not have



                                           9
the opportunity to reflect before discussing the assault. Apolinar, 155 S.W.3d at

189–90. The court held that, when he was finally able to speak about the assault,

he was still startled by it, and thus his statements were excited utterances. Id. Webb

distinguishes this case from Apolinar because the startling event here is the

nightmare, not the trauma.

      We acknowledge this distinction, but it does not affect our analysis because

Apolinar does not abolish the general principle that the startling event “need not

necessarily be the crime itself.” Hunt v. State, 904 S.W.2d 813, 816 (Tex. App.—

Fort Worth 1995, pet ref’d); accord McCarty, 257 S.W.3d at 240. For example, in

Hunt a television program rekindled a child’s fear that she would become pregnant

from sexual abuse suffered three months prior. Hunt, 904 S.W.2d at 816. And in

McCarty, a benevolent tickle deeply upset a child because her abuser also tickled

her “but went much further.” McCarty, 257 S.W.3d at 240. In both cases, the trial

court did not err by admitting the ensuing statements as excited utterances. Id.;

Hunt, 904 S.W.2d at 816.

      Webb argues that cases like McCarty are distinguishable because the

startling event “had nothing to do with who was tickling [the declarant].” But this

is a distinction without a difference. In both Hunt and McCarty, the declarant was

startled by an event that reminded her of prior trauma. This case presents the same

fact pattern.



                                         10
      Finally, Webb complains that the record does not specify whether Jane

described events from her real-world memories or from her dream. This may (or

may not) be a relevance issue, but Webb only objected to hearsay. Accordingly, we

do not address this argument. See TEX. R. APP. P. 33.1.

      We overrule Webb’s second issue.

D.    Defendant’s relationships

      In his third through fifth issues, Webb contends that the trial court

erroneously admitted evidence that Webb was living with another woman while

dating Jane’s mother and that Webb had poor relationships with his two sons.

Webb argues that this evidence was not relevant.

      This evidence was solicited several times during the trial. At times, Webb

failed to object. Webb failed to object to the following testimony from Jane’s

mother concerning the start of her relationship with Webb:

      Q:    At the time you met [Webb], was he married?

      A:    No.

      Q:    Was he in a relationship?

      A:    Yes.

      Q:    And who was he in a relationship with?

      A:    Her name was . . . .

He also did not object to the following question and answer from the same witness:




                                        11
      Q:     And [while you were dating Webb] he was living part of the
             time out in California with [Webb’s significant other]?

      A:     Yes.

He also failed to timely object to the relevance of the following testimony from

Jane’s mother about Webb’s relationships with his sons:

      Q:     Now, at the time that you married [Webb], you indicated he had
             two children . . . correct?

      A:     Yes.

      Q:     Did he have any type of . . . relationship[s] with his sons? How
             would you describe his relationship[s] with his sons?

      A:     It seemed okay.

      To successfully preserve the erroneous admittance of evidence for appellate

review, a party must timely object every time the evidence is offered. Ethington,

819 S.W.2d at 858. Assuming without deciding that the admission of this evidence

was in error, Webb did not preserve the error because he did not consistently object

when the State solicited this testimony. We overrule Webb’s third through fifth

issues.

                               Motion for Mistrial

      In his sixth issue, Webb contends that the trial court erred by denying his

motion for a mistrial.




                                        12
A.    Standard of review

      We review a trial court’s denial of a motion for mistrial for an abuse of

discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). “A mistrial is

an appropriate remedy in ‘extreme circumstances’ for a narrow class of highly

prejudicial and incurable errors.” Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim.

App. 2009) (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App.

2004)). A prompt instruction from the trial judge is usually enough to cure the

error and avoid the need for a mistrial. Wesbrook v. State, 29 S.W.3d 103, 115–16

(Tex. Crim. App. 2000). Whether an error requires a mistrial must be determined

by the particular facts of the case. Ladd, 3 S.W.3d at 567.

      When assessing action on a motion for mistrial, “[d]eterminations of

historical fact and assessment of witness credibility and believability are left

almost entirely to the discretion of the trial judge, and where there is conflicting

evidence there is no abuse of discretion if the motion is overruled.” Hughes v.

State, 24 S.W.3d 833, 842 (Tex. Crim. App. 2000). An appellate court views the

evidence in the light most favorable to the trial court’s ruling. Webb v. State, 232

S.W.3d 109, 112 (Tex. Crim. App. 2007). The ruling must be upheld if it was

within the zone of reasonable disagreement. Id.




                                         13
B.    Instruction to disregard

      Before trial, the trial court granted a motion in limine prohibiting the State

from asking if Webb had distributed illegal drugs to any person other than Jane.

The court told the State that it should approach the bench before asking any

question precluded by the motion.

      The State violated the motion in limine when it asked Jane: “Do you know if

[Webb] gave [his younger son] drugs?” The State did not approach the bench

before asking the question. Immediately, Webb objected. At the ensuing bench

conference, the State apologized. The trial court then issued the following

instruction to the jury: “You are instructed to disregard that question and not

consider it for any reason whatsoever.” Webb then timely moved for mistrial,

which the trial court denied.

      To determine if the trial court abused its discretion by denying a motion for

mistrial, we use the three-factor test announced in Mosley v. State, 983 S.W.2d

249, 259–60 (Tex. Crim. App. 1998). We look to three factors: (1) the severity of

the misconduct, (2) the measures adopted to cure the misconduct, and (3) the

certainty of conviction absent the misconduct. Carballo v. State, 303 S.W.3d 742,

748 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d); see Archie v. State, 340

S.W.3d 734, 740 (Tex. Crim. App. 2011) (applying Mosley factors to denial of

motion for mistrial).



                                        14
      For the first Mosley factor, we examine “the severity of the misconduct, or in

other words, the magnitude of the prejudicial effect of the prosecutor’s

[misconduct].” Archie, 340 S.W.3d at 740. A prosecutor’s attempt to circumvent a

motion in limine is serious misconduct. See Scruggs v. State, 782 S.W.2d 499, 502

(Tex. App.—Houston [1st Dist.] 1989, pet. ref’d). But the magnitude of the

prejudicial effect of this action was somewhat mitigated by the particular

circumstances of this case. First, the prosecutor promptly moved on and did not

revisit the issue. Second, other evidence linked Webb to illegal drugs. Jane testified

that Webb had given her drugs and alcohol. And Webb asked Jane’s mother on

direct examination about various CPS and FBI investigations into “rampant drug

abuse and pornography in the house.”

      For the second Mosley factor, “the reviewing court considers the character of

the measures adopted to cure the misconduct.” Archie, 340 S.W.3d at 741. In this

case, the trial court promptly instructed the jury to disregard the question. An

instruction to disregard is presumed effective unless the particular facts imply

otherwise. Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988).

      For the third Mosley factor, “the reviewing court looks to the certainty of

conviction absent the misconduct.” Archie, 340 S.W.3d at 741. The State’s

evidence included Jane’s testimony recounting her abuse, her boyfriend’s

testimony about her nightmares and outcry, a police officer’s testimony about his



                                         15
investigation of the case, and expert-witness testimony explaining how the facts of

this case match traditional patterns of abuse. The defense focused on Webb and

Jane’s family, who disagreed with various parts of Jane’s story. Thus, this case

came down to a credibility determination: did the jury believe Jane was telling the

truth? The State’s improper question did not significantly affect the believability of

Jane’s account because: (1) the question was posed to Jane, not to a corroborating

witness; (2) Jane had already testified that Webb gave her illegal drugs; (3) the

state and federal investigations provided additional evidence of drugs in the home,

and (4) drug use formed only a small part of Jane’s story.

      Given our analysis of the Mosley factors, we conclude that the State’s

misconduct did not warrant the extraordinary remedy of a mistrial. Accordingly,

we overrule Webb’s sixth point of error.

                                Cumulative Effect

      In his seventh and eighth issues, Webb contends that the cumulative harm of

the alleged errors warrants reversal of his conviction. But we have found no

reversible error in the trial court’s evidentiary rulings or in its decision to deny

Webb’s motion for mistrial. Accordingly, we overrule Webb’s seventh and eighth

issues.5



5
      The State argues that cumulative harm from multiple errors is not a proper issue
      for appeal. Because there is no cumulative harm, we do not address this argument.

                                           16
                                    Conclusion

      We affirm the judgment of the trial court.




                                             Harvey Brown
                                             Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

Publish. TEX. R. APP. P. 47.2(b).




                                        17
                                     JUDGMENT

                                  Court of Appeals
                             First District of Texas
                                   NO. 01-14-00174-CR

                          STEPHEN CLARK WEBB, Appellant

                                             V.

                           THE STATE OF TEXAS, Appellee

     Appeal from the 337th District Court of Harris County. (Tr. Ct. No. 1389676).

       This Court today considered a motion for rehearing filed by appellant, Stephen
Clark Webb. We order that the motion be overruled and that this Court’s former judgment
of April 2, 2015, be vacated, set aside, and annulled. We further order this Court’s
opinion of April 2, 2015, withdrawn.

       This case is an appeal from the final judgment signed by the trial court on February
19, 2014. After submitting the case on the appellate record and the arguments properly
raised by the parties, the Court holds that the trial court’s judgment contains no reversible
error. Accordingly, the Court affirms the trial court’s judgment.

       The Court orders that this decision be certified below for observance.

Judgment rendered September 10, 2015.
Panel consists of Chief Justice Radack and Justices Brown and Lloyd. Opinion delivered
by Justice Brown.
Opinion issued September 10, 2015




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-14-00174-CR
                           ———————————
                    STEPHEN CLARK WEBB, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 337th District Court
                           Harris County, Texas
                       Trial Court Case No. 1389676


               MEMORANDUM OPINION ON REHEARING

      Stephen Clark Webb filed a motion for reconsideration en banc. We

withdraw our opinion and judgment and substitute the following opinion and

judgment in their place. The motion for reconsideration en banc is rendered moot

by our substitution of the new opinion, and is therefore denied. Hudson v. City of
Houston, 392 S.W.3d 714, 717 (Tex. App.—Houston [1st Dist.] 2011, pet. denied);

see Hartrick v. Great Am. Lloyds Ins. Co., 62 S.W.3d 270, 272 (Tex. App.—

Houston [1st Dist.] 2001, no pet.).

       A jury convicted Webb of indecency with a child.1 In eight issues, Webb

contends that the trial court erred by admitting inadmissible evidence and denying

his motion for a mistrial. We affirm.

                                      Background

       In 1996, Webb dated (and later married) the mother of the complainant,

Jane, 2 and moved into Jane’s home. Jane was ten years old at the time. After

several years, Webb divorced Jane’s mother and moved out of the house. As an

adult, Jane disclosed to her boyfriend, her family, and police that Webb had

sexually assaulted her when she was a child. Webb was arrested for aggravated

sexual assault of a child. 3

       Before trial, the trial court granted a motion in limine preventing the State

from soliciting evidence that Webb had given anyone other than Jane illegal drugs.

At trial, the State called Jane, who recounted that when she was a child Webb had

physically assaulted her, performed inappropriate massages on her, made her mow

the lawn topless, shown her pornography, given her drugs and alcohol, and


1
       TEX. PENAL CODE ANN. § 21.11 (West 2011).
2
       We refer to the complainant by this pseudonym to protect her identity.
3
       TEX. PENAL CODE ANN. § 22.021 (West Supp. 2014).

                                            2
performed various other indecent acts. The State also asked Jane if Webb ever

gave his younger son any illegal drugs—a question that violated the motion in

limine. Webb objected before Jane could answer; the court sustained the objection

and instructed the jury to disregard the question. Webb moved for a mistrial; the

court denied his motion.

      The State also called Jane’s boyfriend, who recounted that Jane, now an

adult, would have terrible nightmares. During the nightmares, she would cry out

Webb’s name. He described how she eventually told him about the abuse. Webb

objected to this testimony as inadmissible hearsay; the court overruled the

objection.

      The State’s other witnesses included the investigating police officer and a

child-abuse expert. The State then rested.

      During his case-in-chief, Webb called Jane’s mother to testify about Webb’s

behavior during their marriage and to discredit portions of Jane’s story. On cross-

examination, the State asked Jane’s mother whether Webb was in another

relationship when he began a relationship with her. The State also asked about

Webb’s relationships with his two sons from an earlier marriage. Webb objected to

the relevance of this evidence; the court overruled his objections.

      Webb called several other witnesses and then rested. The jury convicted him

of a lesser-included offense, indecency with a child. Punishment was assessed at



                                          3
ten years’ incarceration, suspended for ten years’ community supervision. Webb

timely appealed.

                              Evidentiary Objections

      In his first five issues, Webb contends that the trial court improperly

admitted hearsay testimony and irrelevant evidence.

A.    Standard of review

      We review a trial court’s ruling on the admission or exclusion of evidence

for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App.

2011); Walker v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009,

pet. dism’d). We will uphold the trial court’s ruling unless it falls outside the “zone

of reasonable disagreement.” Tillman, 354 S.W.3d at 435; Walker, 321 S.W.3d at

22.

      To preserve the issue of erroneously admitted evidence, a party must make a

timely and specific objection and receive a ruling from the trial court. TEX. R. APP.

P. 33.1; Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003). The party

must object every time the evidence is offered. Ethington v. State, 819 S.W.2d 854,

858 (Tex. Crim. App. 1991).

      “The erroneous admission of a hearsay statement constitutes non-

constitutional error that is subject to a harm analysis.” Coleman v. State, 428

S.W.3d 151, 162 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). “We do not



                                          4
overturn a conviction if, after examining the record as a whole, we have fair

assurance that the error did not influence the verdict or had but a slight effect.” Id.

B.    Statements during and after Jane’s nightmares

      In his first issue, Webb contends that the trial court erred by admitting

testimony from Jane’s boyfriend that during violent nightmares she would cry out,

“No, don’t, [Webb]. Don’t. [Webb], no, no.” Webb objected to these statements as

hearsay; the trial court overruled this objection, concluding that they fell within the

excited-utterance exception to the rule against hearsay.

      In his second issue, Webb contends that the trial court erroneously admitted

hearsay statements that Jane made to her boyfriend about the nightmares shortly

after awakening from one. The trial court also admitted the statements as excited

utterances.

      We will review the rule against hearsay, examine these issues in reverse

order, and, ultimately, overrule both.

      1.      The rule against hearsay and the excited-utterance exception

      Hearsay is any out-of-court statement “offered in evidence to prove the truth

of the matter asserted.” TEX. R. EVID. 801(d). In Texas, the rule covers both

explicit assertions and “any matter implied by a statement, if the probative value of

the statement as offered flows from declarant’s belief as to the matter.” TEX. R.




                                           5
EVID. 801(e). Hearsay is inadmissible, unless the statement qualifies for an

exception to the rule against hearsay. See TEX. R. EVID. 801–805.

      In this case, the trial court concluded that Jane’s sleep statements (issue one)

and statements immediately after the nightmare (issue two) fell under the excited-

utterance exception to the rule against hearsay. An excited utterance is a “statement

relating to a startling event or condition made while the declarant was under the

stress of excitement caused by the event or condition.” TEX. R. EVID. 803(2).

“[U]nder the excited-utterance exception, the startling event may trigger a

spontaneous statement that relates to a much earlier incident.” McCarty v. State,

257 S.W.3d 238, 240 (Tex. Crim. App. 2008).

      2.     Explanation of nightmare

      We begin with Webb’s second issue: whether the trial court erroneously

admitted hearsay statements that Jane made to her boyfriend about the nightmares

shortly after awakening from one. Before asking the witness to disclose what Jane

said, the State laid the following predicate for the excited-utterance exception:

      Q:     And when you woke [Jane] up, was she calm?

      A:     The exact opposite of calm.

      Q:     Describe how she was.

      A:     She was in full tears, still pushing me away . . . .

      Q:     Is this the first time you really pressed her?



                                           6
      A:     Yes, ma’am.

      Q:     And did she finally tell you what she was dreaming, having a
             nightmare about?

      A:     Yes, ma’am.

Over Webb’s objection, the prosecutor asked what Jane said “while she was still

upset and crying.” The witness responded:

      A:     She—she said that—I kept asking what had he done to you, and
             she was crying at this point. I was—I was crying as well, but
             she said that he had—that he had—he had done things to her
             and he had touched her where he shouldn’t have, and we both
             started crying and—

      Q:     Now, when you say “he,” who was she talking about?

      A:     [Webb].

      Jane made statements about the abuse she had just relived in her nightmare.

Given that she had just woken up from her nightmare and was “upset,” “crying,”

“in full tears,” and “the exact opposite of calm,” the trial court did not abuse its

discretion by concluding that she was under the stress of this event when making

these statements. See McCarty, 257 S.W.3d at 240 (statements made when re-

startled may be excited utterances).

      Webb argues that a nightmare cannot be a startling event for purposes of the

excited-utterance exception. He distinguishes this case from Apolinar v. State, 155

S.W.3d 184 (Tex. Crim. App. 2005). There, the declarant was beaten unconscious;

he spent four days either unconscious or heavily medicated, and thus did not have


                                         7
the opportunity to reflect before discussing the assault. Apolinar, 155 S.W.3d at

189–90. The court held that, when he was finally able to speak about the assault,

he was still startled by it, and thus his statements were excited utterances. Id. Webb

distinguishes this case from Apolinar because the startling event here is the

nightmare, not the trauma.

      We acknowledge this distinction, but it does not affect our analysis because

Apolinar does not abolish the general principle that the startling event “need not

necessarily be the crime itself.” Hunt v. State, 904 S.W.2d 813, 816 (Tex. App.—

Fort Worth 1995, pet ref’d); accord McCarty, 257 S.W.3d at 240. For example, in

Hunt a television program rekindled a child’s fear that she would become pregnant

from sexual abuse suffered three months prior. Hunt, 904 S.W.2d at 816. And in

McCarty, a benevolent tickle deeply upset a child because her abuser also tickled

her “but went much further.” McCarty, 257 S.W.3d at 240. In both cases, the trial

court did not err by admitting the ensuing statements as excited utterances. Id.;

Hunt, 904 S.W.2d at 816.

      Webb argues that cases like McCarty are distinguishable because the

startling event “had nothing to do with who was tickling [the declarant].” But this

is a distinction without a difference. In both Hunt and McCarty, the declarant was

startled by an event that reminded her of prior trauma. This case presents the same

fact pattern.



                                          8
         Finally, Webb complains that the record does not specify whether Jane

described events from her real-world memories or from her dream. This may (or

may not) be a relevance issue, but Webb only objected to hearsay. Accordingly, we

do not address this argument. See TEX. R. APP. P. 33.1.

         We overrule Webb’s second issue.

         3.    Sleep talking

         We next turn to Webb’s first issue: whether the trial court properly overruled

his hearsay objection and admitted Jane’s sleep talk—“No, don’t, [Webb]. Don’t.

[Webb], no, no”—during the nightmare. But we do not reach this issue because

any error from the admission of the sleep talk was harmless. The statements made

after she awoke provide much more detailed and direct evidence about what she

was dreaming and why. Thus, any tendency of the sleep talk to reveal the contents

of the dream is harmless because this other evidence provides stronger and more

detailed evidence of the same matter asserted.

         And this was not the only evidence against Webb. In addition to Jane’s

boyfriend’s testimony, Jane herself gave detailed testimony regarding various

sexual assaults the she endured and a child-abuse expert explained to the jury how

Jane’s experiences corresponded to common patterns in long-term sexual assault

cases.




                                            9
      We conclude that any error in overruling Webb’s hearsay objection to the

sleep talk was harmless. Accordingly, we overrule Webb’s first issue.

C.    Defendant’s relationships

      In his third through fifth issues, Webb contends that the trial court

erroneously admitted evidence that Webb was living with another woman while

dating Jane’s mother and that Webb had poor relationships with his two sons.

Webb argues that this evidence was not relevant.

      This evidence was solicited several times during the trial. At times, Webb

failed to object. Webb failed to object to the following testimony from Jane’s

mother concerning the start of her relationship with Webb:

      Q:    At the time you met [Webb], was he married?

      A:    No.

      Q:    Was he in a relationship?

      A:    Yes.

      Q:    And who was he in a relationship with?

      A:    Her name was . . . .

He also did not object to the following question and answer from the same witness:

      Q:    And [while you were dating Webb] he was living part of the
            time out in California with [Webb’s significant other]?

      A:    Yes.




                                        10
He also failed to timely object to the relevance of the following testimony from

Jane’s mother about Webb’s relationships with his sons:

      Q:     Now, at the time that you married [Webb], you indicated he had
             two children . . . correct?

      A:     Yes.

      Q:     Did he have any type of . . . relationship[s] with his sons? How
             would you describe his relationship[s] with his sons?

      A:     It seemed okay.

      To successfully preserve the erroneous admittance of evidence for appellate

review, a party must timely object every time the evidence is offered. Ethington,

819 S.W.2d at 858. Assuming without deciding that the admission of this evidence

was in error, Webb did not preserve the error because he did not consistently object

when the State solicited this testimony. We overrule Webb’s third through fifth

issues.

                               Motion for Mistrial

      In his sixth issue, Webb contends that the trial court erred by denying his

motion for a mistrial.

A.    Standard of review

      We review a trial court’s denial of a motion for mistrial for an abuse of

discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). “A mistrial is

an appropriate remedy in ‘extreme circumstances’ for a narrow class of highly

prejudicial and incurable errors.” Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim.

                                        11
App. 2009) (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App.

2004)). A prompt instruction from the trial judge is usually enough to cure the

error and avoid the need for a mistrial. Wesbrook v. State, 29 S.W.3d 103, 115–16

(Tex. Crim. App. 2000). Whether an error requires a mistrial must be determined

by the particular facts of the case. Ladd, 3 S.W.3d at 567.

      When assessing action on a motion for mistrial, “[d]eterminations of

historical fact and assessment of witness credibility and believability are left

almost entirely to the discretion of the trial judge, and where there is conflicting

evidence there is no abuse of discretion if the motion is overruled.” Hughes v.

State, 24 S.W.3d 833, 842 (Tex. Crim. App. 2000). An appellate court views the

evidence in the light most favorable to the trial court’s ruling. Webb v. State, 232

S.W.3d 109, 112 (Tex. Crim. App. 2007). The ruling must be upheld if it was

within the zone of reasonable disagreement. Id.

B.    Instruction to disregard

      Before trial, the trial court granted a motion in limine prohibiting the State

from asking if Webb had distributed illegal drugs to any person other than Jane.

The court told the State that it should approach the bench before asking any

question precluded by the motion.

      The State violated the motion in limine when it asked Jane: “Do you know if

[Webb] gave [his younger son] drugs?” The State did not approach the bench



                                         12
before asking the question. Immediately, Webb objected. At the ensuing bench

conference, the State apologized. The trial court then issued the following

instruction to the jury: “You are instructed to disregard that question and not

consider it for any reason whatsoever.” Webb then timely moved for mistrial,

which the trial court denied.

      To determine if the trial court abused its discretion by denying a motion for

mistrial, we use the three-factor test announced in Mosley v. State, 983 S.W.2d

249, 259–60 (Tex. Crim. App. 1998). We look to three factors: (1) the severity of

the misconduct, (2) the measures adopted to cure the misconduct, and (3) the

certainty of conviction absent the misconduct. Carballo v. State, 303 S.W.3d 742,

748 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d); see Archie v. State, 340

S.W.3d 734, 740 (Tex. Crim. App. 2011) (applying Mosley factors to denial of

motion for mistrial).

      For the first Mosley factor, we examine “the severity of the misconduct, or in

other words, the magnitude of the prejudicial effect of the prosecutor’s

[misconduct].” Archie, 340 S.W.3d at 740. A prosecutor’s attempt to circumvent a

motion in limine is serious misconduct. See Scruggs v. State, 782 S.W.2d 499, 502

(Tex. App.—Houston [1st Dist.] 1989, pet. ref’d). But the magnitude of the

prejudicial effect of this action was somewhat mitigated by the particular

circumstances of this case. First, the prosecutor promptly moved on and did not



                                        13
revisit the issue. Second, other evidence linked Webb to illegal drugs. Jane testified

that Webb had given her drugs and alcohol. And Webb asked Jane’s mother on

direct examination about various CPS and FBI investigations into “rampant drug

abuse and pornography in the house.”

      For the second Mosley factor, “the reviewing court considers the character of

the measures adopted to cure the misconduct.” Archie, 340 S.W.3d at 741. In this

case, the trial court promptly instructed the jury to disregard the question. An

instruction to disregard is presumed effective unless the particular facts imply

otherwise. Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988).

      For the third Mosley factor, “the reviewing court looks to the certainty of

conviction absent the misconduct.” Archie, 340 S.W.3d at 741. The State’s

evidence included Jane’s testimony recounting her abuse, her boyfriend’s

testimony about her nightmares and outcry, a police officer’s testimony about his

investigation of the case, and expert-witness testimony explaining how the facts of

this case match traditional patterns of abuse. The defense focused on Webb and

Jane’s family, who disagreed with various parts of Jane’s story. Thus, this case

came down to a credibility determination: did the jury believe Jane was telling the

truth? The State’s improper question did not significantly affect the believability of

Jane’s account because: (1) the question was posed to Jane, not to a corroborating

witness; (2) Jane had already testified that Webb gave her illegal drugs; (3) the



                                         14
state and federal investigations provided additional evidence of drugs in the home,

and (4) drug use formed only a small part of Jane’s story.

      Given our analysis of the Mosley factors, we conclude that the State’s

misconduct did not warrant the extraordinary remedy of a mistrial. Accordingly,

we overrule Webb’s sixth point of error.

                                Cumulative Effect

      In his seventh and eighth issues, Webb contends that the cumulative harm of

the alleged errors warrants reversal of his conviction. We have already concluded

that any error in admitting Jane’s sleep talk was harmless, and we have found no

other reversible error in the trial court’s evidentiary rulings or in its decision to

deny Webb’s motion for mistrial. Accordingly, we overrule Webb’s seventh and

eighth issues.4

                                    Conclusion

      We affirm the judgment of the trial court.




                                                Harvey Brown
                                                Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).
4
      The State argues that cumulative harm from multiple errors is not a proper issue
      for appeal. Because there is no cumulative harm, we do not address this argument.

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