             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-16-00332-CR
     ___________________________

   MICHAEL LOUISVILLE, Appellant

                    V.

         THE STATE OF TEXAS



  On Appeal from the 297th District Court
         Tarrant County, Texas
       Trial Court No. 1416231D


   Before Walker, Meier, and Gabriel, JJ.
  Memorandum Opinion by Justice Meier
                           MEMORANDUM OPINION

                                    I. Introduction

      Appellant Michael Louisville appeals his conviction and forty-seven-year

incarceration sentence for the continuous sexual assault of a child under fourteen

years of age. In four points, Louisville argues that the trial court erred by allowing the

State’s designated outcry witness to testify, by denying his motion to suppress DNA

evidence, by allowing the sexual assault examiner to testify to what the complainant

told her during a medical exam, and by excusing a venire member prior to voir dire.

Because we conclude that the trial court correctly let the outcry witness testify, that

the trial court did not err by denying Louisville’s suppression motion, that the trial

court did not abuse its discretion by dismissing the complained-of venire member,

and that the admission of the doctor’s testimony was harmless, we will affirm.

                                   II. Background

      In the spring of 2015, Jane1 lived in an apartment in Euless, Texas, with

Louisville, her stepmother (Stepmother), her two half-siblings, Stepmother’s father

(Grandfather), and, sometimes, Stepmother’s cousin.           Stepmother testified that

although she is not Jane’s biological mother, she had raised Jane since she was sixteen

months old. Because the apartment they lived in had only two bedrooms, Jane slept




      Where possible, we use aliases to protect the identity of the minor
      1

complainant.

                                            2
in the hallway in a sleeping bag. As a certified nursing assistant, Stepmother often

worked the night shift while Louisville would watch the children.

      According to Jane, about a week before her thirteenth birthday in March 2015,

Louisville awoke her in the middle of the night and told her to come into his

bedroom. Louisville then told Jane to undress. As she did, Louisville also removed

his clothes. Jane said that Louisville then got up on the bed and placed a towel

underneath him. As Jane stood between his legs at the edge of the bed, Louisville

instructed Jane to “suck his private part.” Shortly after, Louisville had Jane bend over

the bed, and he then inserted his penis into her vagina. By Jane’s account, Louisville

eventually ejaculated into the towel he had placed on the bed. Louisville told Jane to

go back to bed and not to tell anyone what had happened.

      Jane averred that Louisville repeated this conduct “three to four times” a week

through May 2015. Normally, these events would happen in the middle of the night

while Stepmother was at work, they would occur in Louisville’s bedroom, and each

time Louisville would ejaculate into a towel. Jane also said that on “two or three”

occasions, Louisville had put his mouth on her private part.

      On May 29, 2015, the night after Jane’s last day of elementary school, Jane

averred that she felt “safe” that Louisville would not assault her that night because

Stepmother was home. But in the middle of the night, Louisville awoke Jane from

her sleeping bag in the hallway and told her to “suck” his penis. At that time,

Louisville and Jane heard Grandfather getting out of bed.           According to Jane,

                                           3
Louisville got up immediately and acted as if he were going to the restroom. Believing

that Grandfather had seen Louisville molesting her, Jane told Stepmother the next

morning that Louisville had “been touching [her] in the wrong places.”

      Stepmother testified that she did not initially believe Jane because Jane had

gotten in trouble and Louisville had “just whipped her the night before.” She also

averred that Jane had a penchant for lying. But Stepmother said that she began to

believe Jane as she described the incidents. Jane told Stepmother how long these

things had been going on and the frequency at which they occurred. According to

Stepmother, upon reflection, she recalled that Jane’s behavior had changed that

spring. Specifically, Stepmother said that she noticed that Jane was always tired and

would seek approval from Louisville about the clothes she would wear. Stepmother

also noticed that Louisville would act jealous if he saw Jane walking with a boy. After

consulting with Grandfather and her cousin, Stepmother told Jane to take a bath, and

then she took Jane to Dallas Children’s Hospital for a medical examination. A few

weeks later, Stepmother said that she found several towels behind the couple’s

bedroom door. Stepmother described the towels as being in a state where they had

been left wet but later dried. Stepmother washed the towels.

      Dr. Kristen Reeder, an attending physician for Dallas Children’s Medical

Center’s Referral and Evaluation of At Risk Children Clinic, testified that she

examined Jane on May 30, 2015. Reeder said that she initiated her examination by

asking Jane for details about what had happened in order to ensure a complete

                                          4
medical examination; to decide whether a sexual assault kit needed to be performed;

and to determine what, if any, medical treatment was needed. By Reeder’s account,

Jane told her that Louisville had “sexually assaulted” her. Specifically, she told Reeder

that he had touched her private area with his private area, that he had put his finger

inside her private area, and that he had made her put her mouth on his private area.

Jane also told Reeder that these events had occurred multiple times per week since

March 2015. After learning that the latest sexual contact had occurred the night

before, Reeder conducted an acute examination and collected biological samples.

Reeder averred that she did not expect to find semen due to Louisville’s having

typically ejaculated into a towel, but she did believe other DNA evidence might be

found.

         DNA analyst Rachel Burch conducted Y-chromosome STR testing on the

vaginal swab Reeder took from Jane during the examination. Burch said that she was

looking for male DNA and the potential presence of semen. By Burch’s account, she

obtained a partial Y profile with results at seven of seventeen locations, which she was

able to match to a known sample of Louisville’s DNA.             Burch concluded that

Louisville could not be excluded as a contributor to the male DNA profile obtained

from the swab. She further explained that 98.8% of the African-American male

population would be excluded from the profile—Louisville is African-American. But

Burch averred that none of the vaginal swabs from Jane’s exam revealed the presence

of semen and that none of the several items she tested, including Jane’s underwear,

                                           5
revealed the presence of semen. She also stated that none of the oral swabs taken

during Jane’s exam revealed the presence of spermatozoa.

      Prior to trial, Louisville moved to suppress the DNA evidence. Louisville

argued that the warrant that Detective Robert Powell of the Euless Police

Department had obtained in order to collect his DNA through buccal swabbing was

not based on probable cause. He also argued that the manner in which Powell

collected his DNA did not comport with the instructions of the warrant itself.

Specifically regarding probable cause, Louisville argued that because the affidavit that

Powell submitted in order to obtain the warrant did not affirmatively state that

investigators had obtained DNA from Jane’s sexual assault exam or from any items

related to Jane’s complaint at the time Powell sought the warrant, the warrant lacked

probable cause to search his person for DNA. The trial court denied the motion.

      Eventually, a jury found Louisville guilty of continuous sexual assault of a child

under age fourteen. After hearing punishment-phase evidence, the jury assessed

punishment at forty-seven years’ incarceration. The trial court rendered judgment

accordingly and this appeal followed.

                                   III. Discussion

      A.     The Reliability of Jane’s Outcry

      In his first point, Louisville argues that the trial court abused its discretion by

allowing Stepmother to testify as the State’s designated outcry witness. Specifically,

Louisville argues that Jane’s outcry to Stepmother lacked reliability because

                                           6
Stepmother averred that Jane has a penchant for lying and Stepmother also testified

that she did not initially believe Jane. The State responds that Jane’s credibility is not

the proper test for determining the reliability of her outcry, that her outcry meets

sufficient indicia of reliability, and that thus the trial court did not abuse its discretion

by allowing Stepmother to testify regarding the outcry. We agree with the State.

       A trial court’s decision to admit evidence will not be disturbed on appeal absent

a clear abuse of discretion. Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990).

A trial court has abused its discretion only if its decision falls outside the zone of

reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.

1991) (op. on reh’g). Article 38.072 of the code of criminal procedure provides a

mechanism that requires the trial court to determine on a case-by-case basis if outcry

testimony reaches the level of reliability required to be admissible as an exception to

the hearsay rule. Tex. Code Crim. Proc. Ann. art. 38.072 (West Supp. 2014); Norris v.

State, 788 S.W.2d 65, 71 (Tex. App.—Dallas 1990, pet. ref’d).

       Indicia of reliability that the trial court may consider (under article 38.072)

include (1) whether the child victim testifies at trial and admits making the out-of-

court statement; (2) whether the child understands the need to tell the truth and has

the ability to observe, recollect, and narrate; (3) whether other evidence corroborates

the statement; (4) whether the child made the statement spontaneously in her own

terminology or whether evidence exists of prior prompting or manipulation by adults;

(5) whether the child’s statement is clear and unambiguous and rises to the needed

                                             7
level of certainty; (6) whether the statement is consistent with other evidence;

(7) whether the statement describes an event that a child of the complainant’s age

could not be expected to fabricate; (8) whether the child behaves abnormally after the

contact; (9) whether the child has a motive to fabricate the statement; (10) whether

the child expects punishment because of reporting the conduct; and (11) whether the

accused had the opportunity to commit the offense. Norris, 788 S.W.2d at 71; see also

Gonzales v. State, 477 S.W.3d 475, 479 (Tex. App.—Fort Worth 2015, pet. ref’d).

      Here, the evidence demonstrates that Jane made a spontaneous statement to

Stepmother wherein she described a clear and unambiguous claim that Louisville had

been sexually assaulting her.     When Stepmother questioned Jane further, Jane

described how Louisville had required her to “suck” his penis numerous times; that he

had been putting his penis in her “private part”; and that he had been ejaculating into

a towel—all statements made in Jane’s own terminology. Jane also explained that she

thought that Grandfather had seen Louisville committing these acts the night before.

And although Grandfather denied that he had seen anything inappropriate, he did

verify that Louisville was awake during the night at the time when Jane had said she

believed Grandfather had seen them; thus, evidence exists that Louisville had the

opportunity to commit these acts. At trial, Jane testified that she told Stepmother

these things when she did because she believed that Grandfather had witnessed them

and that she felt that she no longer had to fear that others would not believe her

about what had been happening. Jane’s testimony admitting that she had made the

                                          8
statement to Stepmother is another indicium of the reliability of her statement.

Further, Stepmother testified that during the time period when Jane said that these

things were happening, Jane’s behavior had changed in that Jane seemed more tired

and that she seemed to seek Louisville’s approval on what clothing she wore.

Stepmother also averred that Louisville had become possessive toward Jane when he

would see her walking with a boy.

      Louisville argues that because Stepmother testified that Jane had a penchant for

lying and because Grandfather reported to Stepmother that he had not seen anything

inappropriate, Jane’s statement is inherently unreliable. But in determining whether to

properly admit an outcry statement, the trial court’s focus is not on the credibility of

the complainant but rather on the reliability of the outcry in terms of the time,

content, and circumstances in which the outcry was made. See Sanchez v. State, 354

S.W.3d 476, 488–89 (Tex. Crim. App. 2011) (“[T]he narrow range of discretion that

Article 38.072 allows a trial court means that the credibility of the outcry witness is

not a relevant issue at a hearing to determine admissibility of an outcry.”). Thus, it is

simply not relevant whether Stepmother averred that Jane had a penchant for lying

and that she did not initially believe Jane. And as explained above, even though

Grandfather could not verify Jane’s statement, he did verify that Louisville had the

opportunity to commit these acts the night before Jane made her outcry. Thus, it was

well within the zone of reasonable disagreement whether to admit the outcry, and the



                                           9
trial court did not abuse its discretion by allowing Stepmother to testify regarding it.

We overrule Louisville’s first point.

      B.     The Warrant for Louisville’s DNA

      In his second point, Louisville argues that the trial court erred by denying his

motion to suppress the results of the comparison between his DNA taken pursuant to

the warrant Powell procured and the DNA found during Reeder’s examination of

Jane. Specifically, Louisville contends that because investigators had not yet obtained

any identifiable DNA from Jane’s exam—or from any items associated with Jane’s

complaint—prior to seeking a search warrant to obtain his DNA, the warrant lacked

probable cause to collect his DNA. Thus, according to Louisville, Powell’s collection

of his DNA violated his right against unreasonable searches under both federal and

Texas law. Louisville also argues that the manner in which Powell collected his DNA

violated his right against unreasonable searches.

             1.     Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.

2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the

trial court’s decision, we do not engage in our own factual review. Romero v. State, 800

S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex.

App.—Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of

the credibility of the witnesses and the weight to be given their testimony. Wiede v.

                                           10
State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855

(Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex.

Crim. App. 2006). Therefore, we give almost total deference to the trial court’s

rulings on (1) questions of historical fact, even if the trial court’s determination of

those facts was not based on an evaluation of credibility and demeanor, and

(2) application-of-law-to-fact questions that turn on an evaluation of credibility and

demeanor. Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09

(Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.

2002). But when application-of-law-to-fact questions do not turn on the credibility

and demeanor of the witnesses, we review the trial court’s rulings on those questions

de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim.

App. 2005); Johnson, 68 S.W.3d at 652–53.

       Stated another way, when reviewing the trial court’s ruling on a motion to

suppress, we must view the evidence in the light most favorable to the trial court’s

ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App.

2006). When the trial court makes explicit fact findings, we determine whether the

evidence, when viewed in the light most favorable to the trial court’s ruling, supports

those fact findings. Kelly, 204 S.W.3d at 818–19. We then review the trial court’s legal

ruling de novo unless its explicit fact findings that are supported by the record are also

dispositive of the legal ruling. Id. at 818.



                                               11
       When the record is silent on the reasons for the trial court’s ruling, or when

there are no explicit fact findings and neither party timely requested findings and

conclusions from the trial court, we imply the necessary fact findings that would

support the trial court’s ruling if the evidence, viewed in the light most favorable to

the trial court’s ruling, supports those findings. State v. Garcia-Cantu, 253 S.W.3d 236,

241 (Tex. Crim. App. 2008); see Wiede, 214 S.W.3d at 25. We then review the trial

court’s legal ruling de novo unless the implied fact findings supported by the record

are also dispositive of the legal ruling. Kelly, 204 S.W.3d at 819.

       We must uphold the trial court’s ruling if it is supported by the record and

correct under any theory of law applicable to the case even if the trial court gave the

wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App.

2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied, 541

U.S. 974 (2004).

              2.     The Search of a Person’s DNA

       Compelling an accused to give a DNA sample is a search within the meaning of

the Fourth Amendment. Maryland v. King, 569 U.S. 435, 446, 133 S. Ct. 1958, 1968–69

(2013) (holding that buccal swabbing an accused’s inner cheek for collection of DNA

is a search within the meaning of the Fourth Amendment); Schlicher v. Peters, 103 F.3d

940, 942–43 (10th Cir. 1996) (holding that taking a saliva sample for DNA

information is a search within the meaning of the Fourth Amendment); see also United

States v. Kraklio, 451 F.3d 922, 923 (8th Cir.), cert. denied, 549 U.S. 1004 (2006) (holding

                                            12
that drawing blood for a DNA sample constitutes a search). Using a swab to extract

DNA from a defendant’s cheek is invasive, an individual’s DNA reveals private

medical information, and the act of reaching into the subject’s mouth to conduct the

swab is an invasion into the body. United States v. Lassiter, 607 F.Supp.2d 162, 165

(D.D.C. 2009); but see King, 569 U.S. at 461, 133 S. Ct. at 1977–78 (reasoning intrusion

of buccal swabbing negligible in the context of routine booking because privacy

expectations are lessened during booking).

      Although few courts have considered the issue, some federal authority stands

for the proposition that absent the existence of a known DNA sample associated with

the alleged crime to compare the defendant’s DNA to, a search warrant lacks

probable cause to obtain a defendant’s DNA. See Hindman v. United States, Nos. 5:06-

cr-00112-KOB-JEO, 5:10-cv-08023-KOB-JEO, 2015 WL 4390009, at *22 (N.D. Ala.

July 15, 2015) (holding that in order to establish probable cause to obtain a DNA

sample, “the government must possess a testable DNA sample sufficiently linked to

the subject crime, which might then be compared to the suspect’s sample to attempt

to establish a ‘match’”); United States v. Robinson, No. 11-CR-0325 (DWF/LIB), 2011

WL 7563020, at *5 (D. Minn. Dec. 2, 2011), report and recommendation adopted, No. 11-

CR-325(1) (DFW/LIB), 2012 WL 948670 (D. Minn. Mar. 20, 2012) (recommending

that probable cause had not been established to obtain the defendant’s DNA because

the government had not shown that DNA evidence on a firearm existed to compare

against defendant’s DNA); United States v. Pakala, 329 F.Supp.2d 178, 181 (D. Mass.

                                          13
2004) (holding that a defendant cannot be subjected to a buccal swab until the

government has determined whether a firearm contained a sufficient DNA profile in

which to compare it to); see also People v. Turnbull, 61 V.I. 46, 54–55 (V.I. Super. Ct.

2014) (holding that absent a DNA sample to compare defendant’s to, a search warrant

for a DNA sample lacks probable cause); but see United States v. Lopez-Castillo, No. 15-

cr-279(JNE/TNL), 2016 WL 1611582, at *2 (D. Minn. Apr. 22, 2106) (questioning

proposition’s correctness in light of King). So, for purposes of this opinion, we will

assume without deciding that the search warrant authorizing the taking of Louisville’s

DNA, and the manner in which it was taken, violated Louisville’s rights against an

unreasonable search.

      We conclude, however, that the trial court did not abuse its discretion by

denying the suppression of the DNA evidence in this case because the State had an

independent source for obtaining Louisville’s DNA aside from the search warrant that

Louisville contests.

             3.        Independent Source Doctrine

      The independent source doctrine provides that facts do not become “‘sacred

and inaccessible’ simply because they are first discovered unlawfully; rather, ‘[i]f

knowledge of [facts] is gained from an independent source they may be proved like

any others[.]’” Wehrenberg v. State, 416 S.W.3d 458, 464 (Tex. Crim. App. 2013)

(quoting Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S. Ct. 182, 183

(1920)). Thus, the independent source doctrine allows the admission of evidence

                                          14
derived or obtained from a lawful source so long as that source is separated from any

illegal conduct by law enforcement. Wehrenberg, 416 S.W.2d at 465 (citing Nix v.

Williams, 467 U.S. 431, 443, 104 S. Ct. 2501, 2508–09 (1984)). And the court of

criminal appeals has held that application of the independent source doctrine is

consistent with Texas’s statutory exclusionary rule’s requirement that evidence

“obtained” in violation of the law is subject to suppression. See Tex. Code Crim.

Proc. art. 38.23 (West 2017); Wehrenberg, 416 S.W.3d. at 467–68.

             4.     The Trial Court Did Not Abuse Its Discretion by Denying
                    Louisville’s Motion

      In this case, when viewed in a light most favorable to the trial court’s ruling, the

record reveals that the State independently had access to Louisville’s DNA apart from

the DNA collected from Louisville pursuant to the search warrant that he now

complains of. The record shows that the State charged Louisville, by indictment on

June 2, 2015, with the offense of continuous sexual assault of a child under age

fourteen. See Tex. Penal Code Ann. § 21.02 (West 2017). Because of the nature of

the offense charged, and pursuant to the Texas Government Code, the district

attorney filed a motion in the trial court requesting the collection of Louisville’s DNA

on August 17, 2015. See Tex. Gov’t Code Ann. § 411.1471 (West 2017). The trial

judge granted the State’s request. On that request is the notation that Louisville’s

DNA was already “currently in CODIS,” indicating that Louisville’s DNA profile was

already a part of the Combined DNA Index System (CODIS). See King, 569 U.S. at

444–45, 133 S. Ct. at 1968 (discussing authorization of CODIS by Congress, its
                                           15
supervision by the Federal Bureau of Investigation, how CODIS includes DNA

profiles from all fifty States and a number of federal agencies, and how these States

and agencies have access to CODIS for the purposes of identifying certain classes of

defendants). The State also filed a notice to introduce extraneous offense evidence

demonstrating that Louisville has an extensive criminal record dating back to

November of 1996 and spanning the States of Texas and Louisiana. A reasonable

inference from this record is that Louisville’s DNA was in CODIS prior to the

warrant that he now complains of and that his DNA was in CODIS well before the

lab report issued on January 15, 2016, linking his DNA to Jane. It is also noteworthy

that the assistant district attorney and not Powell—the officer who procured the

DNA warrant—signed the State’s request for Louisville’s DNA pursuant to the Texas

Government Code. We conclude and hold that the trial court did not abuse its

discretion by denying Louisville’s suppression motion because the record supports

that the State had access to Louisville’s DNA through a source independent of the

warrant he complains of. See Stevens, 235 S.W.3d at 740. We overrule Louisville’s

second point.

      C.     Statements Jane Made to Reeder

      In his third point, Louisville argues that the trial court abused its discretion by

allowing Reeder, the sexual assault examiner, to testify about what Jane told her

during the examination. Specifically, Louisville argues that Reeder’s testimony was

impermissible hearsay; that the medical-diagnosis exception does not apply in this

                                          16
case because “there is no evidence that [Jane] made her statements . . . for the purpose

of medical diagnosis or treatment”; and that there is no evidence that Jane knew that

she needed to be truthful about what she told Reeder. We agree with Louisville that

there is no evidence in the record that Reeder impressed upon Jane that her

statements were made for medical purposes or treatment and that proper diagnosis or

treatment depended on the truthfulness of her statements, but we conclude that the

trial court’s admission of this testimony was harmless.

      We review the trial court’s decision to allow testimony over a hearsay objection

for a clear abuse of discretion. See Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim.

App. 2003). In this case, the trial court ruled that Jane’s statements to Reeder—that

Louisville had put his penis in her mouth and vagina, that Louisville had placed his

mouth on her genital area and inserted his finger into her “private area,” that

Louisville had “sexually assaulted” her, and that these acts had transpired over a

period of months—were admissible under the medical-diagnosis exception to the

hearsay exclusionary rule.    See Tex. R. Evid 803(4).     Rule 803(4) provides that

“statement[s] that” are “made for--and [are] reasonably pertinent to--medical

diagnosis or treatment; and [] describe[] medical history; past or present symptoms or

sensations; their inception; or their general cause” are admissible as an exception to

the hearsay exclusionary rule. Id. For statements to be admissible under this hearsay

exception, the proponent of the evidence must show that (1) the declarant was aware

that the statements were made for the purposes of medical diagnosis or treatment and

                                          17
that proper diagnosis or treatment depended on the veracity of the statements and

(2) the particular statements offered were also “pertinent to . . . treatment”; that is, it

was reasonable for the health care provider to rely on the particular information in

treating the declarant. Taylor v. State, 268 S.W.3d 571, 589, 591 (Tex. Crim. App.

2008).

         Reeder testified that she generally informed complainants why she was

examining them and that she specialized “in doing these types of exams.” Reeder also

said that she had asked Jane about what was going on with her to ensure that she was

doing everything appropriate with regard to her medical examination and to Jane’s

medical treatment, including any necessary laboratory work and medication. Reeder

further averred that she asked Jane specific questions regarding what had transpired

and when, in order to determine whether her examination should include procedures

and treatments related to an acute injury. But at no time during voir dire prior to

testifying before the jury or in front of the jury did Reeder state that she had made

Jane aware that her statements were being made for the purposes of medical diagnosis

or treatment and that proper diagnosis or treatment depended on the veracity of her

statements. See id.

         This court recognizes that the Texas Court of Criminal Appeals has instructed

that in the context of a “physician’s cold examination table . . . it seems only natural to

presume that adults, and even children of a sufficient age or apparent maturity, will

have an implicit awareness that the doctor’s questions are designed to elicit accurate

                                            18
information and that veracity will serve their best interest.” Id. at 589. But in cases

where courts have decided that a minor complainant had an “implicit awareness” of

the need to be truthful, the testimony in those cases reached beyond what Reeder

testified to, the complainants in those cases were sixteen years’ old at the time they

were examined, and there was no evidence of apparent immaturity. See Duckworth v.

State, No. 04-12-00077-CR, 2013 WL 3871058, at *2–3 (Tex. App.—San Antonio

July 24, 2013, no pet. (mem. op., not designated for publication) (holding that trial

court did not abuse its discretion by admitting testimony of sexual assault examiner

regarding what sixteen-year-old complainant told her during exam). Here, however,

Jane was thirteen years’ old at the time she was examined and Reeder did not testify

that she fully explained the examination to Jane. Moreover, in this case, it is apparent

from the record that the prosecutor did not understand that it was relevant whether

Jane was aware that her statements to Reeder were made for the purposes of medical

diagnosis or treatment and that proper diagnosis or treatment depended on the

veracity of her statements. Indeed, after Louisville objected, specifically citing Taylor,

the prosecutor opined that such evidence was unnecessary for the admission of

Reeder’s testimony. See id. The prosecutor did state that she would ask questions of

Reeder in front of the jury as to whether she had impressed upon Jane the need for

her statements to be truthful, but the prosecutor never elicited that testimony.

Furthermore, there is evidence in the record that Jane had a propensity to lie; thus, it



                                           19
cannot be said that Jane possessed a “sufficient . . . apparent maturity” to be truthful

during the exam. Id.

      Though this case might be a close call, we conclude that this record is

insufficient to support the trial court’s ruling allowing Reeder to testify to the

complained-of hearsay. Thus, the trial court abused its discretion by allowing Reeder

to testify to the out-of-court statements.

      Having determined that the trial court abused its discretion by admitting

Reeder’s testimony over Louisville’s hearsay objection, we now apply a rule 44.2(b)

harm analysis. Tex. R. App. P. 44.2(b); see also West v. State, 121 S.W.3d 95, 104 (Tex.

App.—Fort Worth 2003, pet. ref’d). Under rule 44.2(b) we disregard the error if it

did not affect Louisville’s substantial rights. A substantial right is affected when the

error had a substantial and injurious effect or influence in determining the jury’s

verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v.

United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an error

does not affect a substantial right if we have “fair assurance that the error did not

influence the jury, or had but a slight effect.” Solomon v. State, 49 S.W.3d 356, 365

(Tex. Crim. App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

      In making this determination, we review the record as a whole, including any

testimony or physical evidence admitted for the jury’s consideration, the nature of the

evidence supporting the verdict, and the character of the alleged error and how it

might be considered in connection with other evidence in the case. Motilla v. State, 78

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S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also consider the jury instructions,

the State’s theory and any defensive theories, whether the State emphasized the error,

closing arguments, and even voir dire, if applicable. Id. at 355–56.

      Here, the complained-of testimony was duplicative of both Jane’s and

Stepmother’s testimony. Indeed, Jane, going into much greater detail than Reeder,

averred to the jury that Louisville had engaged in the exact conduct that Reeder said

Jane had stated to her. Stepmother, the designated outcry witness, also testified to the

conduct that Jane had told Reeder. Furthermore, the State presented DNA evidence

that Louisville was the assailant, and the State did not emphasize Reeder’s testimony

in its closing arguments. We hold that the complained-of testimony did not have a

substantial or injurious effect or influence in determining the jury’s verdict. See King,

953 S.W.2d at 271; West, 121 S.W.3d at 105 (holding that hearsay statements were

harmless where complainant provided more “detailed, factually specific testimony” of

sexual assault). We overrule Louisville’s third point.

      D.     The Trial Court’s Excusing Veniremember 38

      In his fourth point, Louisville argues that the trial court improperly excused

Veniremember 38 from jury duty. Specifically, Louisville argues that there is no

evidence in the record that Veniremember 38 swore to her excuse for being

dismissed. See Tex. Gov’t Code § 62.110(a) (West 2017) (“[A] court may hear any

reasonable sworn excuse of a prospective juror . . . and if the excuse is considered

sufficient shall release him from jury service entirely or until another day of the term,

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as appropriate.”). We conclude that Louisville has failed to preserve this issue for our

review.

      Prior to the venire panel’s being seated, the bailiff informed the trial court that

although Veniremember 38 had checked in, she had not returned to the trial court

when the panel was called into court.          Shortly thereafter, and after a phone

conversation between the trial court and Veniremember 38, the trial court informed

both the State and defense counsel that he had spoken with Veniremember 38, that

she had received a call from her mother informing her that her father had suffered a

stroke, and that she had left the courthouse to drive to the hospital to be with her

father. The trial court informed both parties that he was excusing Veniremember 38

from jury service based on his conversation with her. Defense counsel objected with

the following statement: “The Court has not been able to verify that her father had a

stroke. All we know is that she isn’t here, and that is the reason she gave for not

being here.”

      To preserve a complaint for our review, a party must have presented to the trial

court a timely request, objection, or motion that states the specific grounds for the

desired ruling if they are not apparent from the context of the request, objection, or

motion. Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim.

App. 2015), cert. denied, 136 S. Ct. 1461 (2016). And the complaint made on appeal

must comport with the complaint made in the trial court or the error is forfeited.



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Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004); Vafaiyan v. State, 279

S.W.3d 374, 383 (Tex. App.—Fort Worth 2008, pet. ref’d).

      Here, Louisville’s complaint in his brief that Veniremember 38’s excuse was

not “sworn” to does not comport with his complaint in the trial court that the court

had not verified that Veniremember 38’s father had in fact suffered a stroke. Because

Louisville’s objection at trial does not comport with the complaint he now makes on

appeal, he has forfeited this complaint for our review. See Ott v. State, 627 S.W.2d 218,

226 (Tex. App.—Fort Worth 1981, pet. ref’d) (“His objection is not the one made in

his brief on appeal, that the jurors were excused for economic reasons. Any objection

to the excusing of these jurors was therefore waived.”). We overrule Louisville’s

fourth point.

                                   IV. Conclusion

      Having overruled all four of Louisville’s points on appeal, we affirm the trial

court’s judgment.




                                                      /s/ Bill Meier
                                                      Bill Meier
                                                      Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: November 1, 2018


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