Opinion filed October 3, 2013




                                       In The


        Eleventh Court of Appeals
                                    __________

                                No. 11-11-00270-CR
                                    __________

                         JUSTIN MILLER, Appellant

                                         V.

                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 385th District Court
                                Midland County, Texas
                          Trial Court Cause No. CR36352



                      MEMORANDUM OPINION

      The jury found Justin Miller guilty of aggravated sexual assault of a child
and assessed punishment at confinement for fifteen years and a $10,000 fine. The
trial court sentenced Miller accordingly. We affirm.
      Miller presents six issues for review. In his first and second issues, Miller
argues that the trial court abused its discretion when it allowed the investigating
detective and the sexual assault nurse examiner (SANE) to give an opinion as to
the veracity of the complaining witness. Miller alleges in his third and fourth
issues that the trial court erred when it restricted Miller’s impeachment of the
outcry witness regarding a prior inconsistent statement that she had made to the
investigating detective and when it denied his motion for new trial based on the
same ground. In his fifth and sixth issues, Miller asserts that the trial court abused
its discretion when it submitted an overly broad response to a note from the jury
and when it denied his motion for new trial based on the same alleged error. Miller
does not challenge the sufficiency of the evidence.
      The complaining witness, R.R., is Miller’s eight-year-old half sister.
Jackie R. is the mother of R.R. and Miller. Miller was adopted by Gayle and
Thomas Miller when he was one week old. Miller and his birth mother, Jackie,
made contact with one another and arranged to meet for the first time at the
Millers’ home. The Millers and Jackie’s family spent the day together, and after
dinner, R.R. and Miller went to Miller’s room to play darts and video games. L.M.
(Miller’s sister) and T.R. (R.R.’s brother) played in L.M.’s room. R.R. testified
that, while they were lying on Miller’s bed playing the D.S. (a handheld gaming
system), Miller rubbed the inside of her private with his finger. She told him to
stop because it hurt. He stopped for a few minutes and then started touching her
again. R.R. told him she had to go to the bathroom. She got up and went to the
restroom, but she could not go to the bathroom because it hurt too badly. R.R.
went to her mother, Jackie, and told her that she needed to talk to her in the
restroom. Jackie went with her to the restroom, and R.R. told her what had
happened.


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         Jackie testified that R.R.’s vagina was red and raw. She told her husband
and Gayle what R.R. told her had happened. Jackie and Gayle confronted Miller
with the allegation, and Miller denied touching R.R. in any inappropriate way.
Jackie’s family left the Millers’ home and went on vacation. Several weeks after
returning home from vacation, Jackie contacted the police and reported the
incident. Miller was subsequently charged with aggravated sexual assault of a
child.
         We will first address Miller’s contention that the trial court allowed the
investigating detective and the SANE nurse to give an opinion as to R.R.’s
veracity.    On appeal, Miller complains that Bill Anderson, the investigating
detective, directly commented on the complainant’s credibility when he testified as
to why he believed the forensic interview was true.           Defense counsel called
Detective Anderson to testify and the following exchange occurred:
                Q. And then you accepted the CAC interview as far as what the
         child said as being true; is that correct?

               A. That’s correct.

         During the State’s cross-examination, the prosecutor asked, “Also, [defense
counsel] asked you on direct, did you believe the CAC was true, and you stated
yes.     Why did you believe the CAC interview was true?”            Defense counsel
objected and made the following argument: “This is speculation. I asked him if he
assumed that it was true, not whether it was true, to show the witness’s -- this
witness’s state of mind and the way he conducted the investigation, not his
opinion, so      I   object.”   The   trial   court   overruled   the objection, and
Detective Anderson answered, “You look at the demeanor, how the child answers
a question, body language and things like that. And that’s what helps us believe in
the truth of the matter with a child during the interview.”


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       During redirect by defense counsel, the following exchange occurred:
             Q. Now, you’ve testified to the ladies and gentlemen of the
       jury that you watched this CAC video and you found her to be
       credible; is that correct?

              A. That’s correct.
       A witness’s direct opinion on the truthfulness of another witness is
inadmissible. Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997); Yount v.
State, 872 S.W.2d 706, 711–12 (Tex. Crim. App. 1993) (op. on reh’g); Arzaga v.
State, 86 S.W.3d 767, 776 (Tex. App.—El Paso 2002, no pet.). Here, however,
Detective Anderson did not directly comment on R.R.’s truthfulness in response to
the prosecutor’s question. Instead, Detective Anderson listed factors that he relied
on to determine the truthfulness of a child during an interview. He did not state
specifically what he looked for when he reviewed R.R.’s CAC interview, nor did
he testify as to what his conclusions were regarding R.R.            The only time
Detective Anderson testified as to whether R.R.’s interview was true or credible
was when he agreed with defense counsel that he accepted the interview as true
and when he agreed with defense counsel that he found R.R. to be credible.
Because Detective Anderson did not directly comment on R.R.’s truthfulness in
response to the prosecutor’s question, the trial court did not err. We overrule
Miller’s first issue.
       Miller also complains that Araceli Desmarais, the SANE nurse, directly
commented on the complainant’s credibility when she testified that, based on her
exam and the history given by R.R., her impression was sexual abuse with normal
findings. Specifically, Miller contends that this testimony, along with Desmarais’s
recount of the statements R.R. made to her during the exam, was an improper
attempt to bolster R.R.’s unimpeached, prior consistent testimony.



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      Defense counsel made numerous objections throughout Desmarais’s
testimony.   The following exchange took place before the trial court regarding
Desmarais’s findings:
             Q. (BY [PROSECUTOR]) Based upon your examination, the
      history given to you by [R.R.], what were your findings?

            [DEFENSE COUNSEL]: Once again -- and to the extent that
      she’s going to testify as to any conclusion about a sexual a [sic]
      assault, I will object. And I don’t know the answer, but I want to
      preserve my objection, your Honor.

             THE COURT: That’s overruled.

             Q. (BY [PROSECUTOR]) You may answer.

            A. My impression was sexual abuse with normal genital and
      anal exam.

The trial court sustained defense counsel’s objection to the State’s prior question
that asked whether the exam confirmed that a sexual assault took place. As to that
question, defense counsel objected on the grounds that it called for a legal
conclusion, presupposed facts that Desmarais had no personal knowledge of, and
was beyond the scope of Desmarais’s expertise. Defense counsel also objected to
Desmarais testifying as to the statements R.R. made to her during the exam on the
grounds that the State had not laid the proper predicate for the medical diagnosis
exception to the hearsay rule because the State had not shown that R.R. was aware
of the importance of telling the truth during the exam.
      Although defense counsel objected to Desmarais’s testimony on numerous
occasions, none of the grounds stated were for improper bolstering, commenting
on the credibility of the complainant, or giving an opinion as to the veracity of the
complainant. Because Miller’s contentions on appeal do not comport with his
objections at trial, he has not preserved error for appellate review.       TEX. R.
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APP. P. 33.1; Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986).
Miller’s second issue is overruled.
      In his third and fourth issues, Miller contends that the trial court erred when
it restricted Miller’s impeachment of Jackie by not admitting extrinsic evidence of
a prior inconsistent statement that Jackie had made to Detective Anderson. Jackie
testified at trial that the first thing R.R. told her in the bathroom was, “Mommy,
Justin hurt me.” Defense counsel asked Jackie whether she had told
Detective Anderson that the first thing R.R. said to her in the bathroom was that
her tee-tee hurt and burned.      Jackie did not deny making the statement to
Detective Anderson. She testified that she did not recall the sequence in which she
made the statements to Detective Anderson and admitted that she may have told
Detective Anderson the statements out of order from the order in which R.R. said
them to her.
      Miller argues that, because Jackie denied making the statement to
Detective Anderson, defense counsel was permitted to ask Detective Anderson
about the out-of-court statement. However, while the jury was present, defense
counsel never asked Detective Anderson whether Jackie made the statement, and
the trial court, therefore, never ruled on its admissibility.    Miller only asked
Detective Anderson about the statement during a bill made outside the presence of
the jury. Defense counsel did move to admit the excerpt of the statement during
his examination of Jackie. The trial court sustained the State’s objection on the
ground that Jackie admitted making the statement. Because Jackie did not deny
making the statement, extrinsic evidence of the statement was inadmissible. See
TEX. R. EVID. 613(a).     The trial court did not err when it restricted Miller’s
impeachment of Jackie regarding the prior inconsistent statement. Because the
trial court did not err when it restricted Miller’s impeachment, the trial court also


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did not err when it denied Miller’s motion for new trial based on this ground of
alleged error. Miller’s third and fourth issues are overruled.
      Miller argues in his fifth and sixth issues that the trial court erred when it
submitted an overly broad response to a note from the jury. Article 36.28 of the
Texas Code of Criminal Procedure provides in part that “if the jury disagree as to
the statement of any witness they may, upon applying to the court, have read to
them from the court reporter’s notes that part of such witness testimony or the
particular point in dispute, and no other.” TEX. CODE CRIM. PROC. ANN. art. 36.28
(West 2006). If the trial court determines that the jury’s request is proper under
Article 36.28, the trial court must then interpret the request and decide which
portions of the testimony will best answer the request. Brown v. State, 870 S.W.2d
53, 55 (Tex. Crim. App. 1994). We will not disturb a trial judge’s decision under
Article 36.28 unless a clear abuse of discretion and harm are shown. Id.
      During deliberations, the foreman of the jury sent the following note to the
court: “We would like to have the following testimony read back to us: When
[defense counsel] asked [R.R.] about ‘I have told you everything my mommy told
me to tell you.’ We are in disagreement about this.” The State objected to the trial
court reading back only the question and answer relating to the issue from defense
counsel’s examination of R.R. and requested that the State’s questions to R.R. on
the same issue be included in the testimony provided to the jury. The trial court
initially agreed with Miller and ruled that only the question and answer from
defense counsel’s examination would be read to the jury. The trial court then
brought the jury into the courtroom, and the following exchange occurred:
            THE COURT: You sent a note out and you -- do you have that
      note with you or is it back in the jury room?

             PRESIDING JUROR: I left it in the room.


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      THE COURT: That’s all right. I believe the note was -- it was
in quotes, the question that you had a disagreement about. And the
question was when --

      PRESIDING JUROR: Yes, that line of questioning.

       THE COURT: -- [defense counsel] asked [R.R.] if her -- if she
told the -- if her mama told her what to say. Is that what you’ve got a
disagreement with?

      PRESIDING JUROR: Yes.

       THE COURT: Okay. And nothing else about her testimony on
that, but just that one -- on that interview, nothing else about her
testimony on the interview is in disagreement?

      PRESIDING JUROR: Not -- not as --

      THE COURT: But this is what you wanted, right?

      PRESIDING JUROR: Yes, sir.

      [PROSECUTOR]: Your Honor, may we approach?

      THE COURT: Yes, ma’am.

      (AT BENCH, ON THE RECORD)

      [PROSECUTOR]: I don’t believe that it’s just in a
disagreement. He just said a line of questioning pertaining to that.
That’s what he said twice.

      [DEFENSE COUNSEL]: He said it.

      THE COURT: I’m going to get Monica to read it.

      (OPEN COURT, JURY PRESENT)

      THE COURT: Monica, read [the presiding juror’s] statement
back to me.
                                  8
            (Requested portion read)

            THE COURT: His answer was, “That line of questioning.”

            Is it that line of questioning, [presiding juror]?

            PRESIDING JUROR: Yes, sir.

The State again moved to have the line of questioning from both defense counsel’s
and the State’s examination of R.R. read back to the jury. The trial court changed
its ruling and read the testimony of the witness on the disputed issue from both
examinations.
      Miller argues that including R.R.’s testimony from the State’s redirect was
outside the scope of the jury’s request and was an improper comment on the
evidence. We do not agree. Although the presiding juror initially stated that the
jurors were in disagreement about defense counsel’s question regarding “I have
told you everything my mommy told me to tell you,” the presiding juror responded
to the court’s inquiry that the jurors were in disagreement about the “line of
questioning.” The trial court could have interpreted that statement to mean that the
jury was in disagreement as to the entire testimony regarding whether R.R. told the
counselor what her mother told her to say. See, e.g., Iness v. State, 606 S.W.2d
306, 314 (Tex. Crim. App. 1980) (holding trial court did not abuse its discretion
when it interpreted the sentence “we are in disagreement concerning this matter” as
an expression of disagreement concerning the entire testimony relating to
penetration even when the first part of jury’s request specifically asked about the
prosecutor’s questions to witness).
      We hold that the trial court did not abuse its discretion when it read R.R.’s
entire testimony pertaining to whether she told the counselor what her mother told
her to say. Because the trial court did not err when it read the entire testimony
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back to the jury, the trial court also did not err when it denied Miller’s motion for
new trial based on this ground of alleged error. Miller’s fifth and sixth issues are
overruled.
      We affirm the judgment of the trial court.




                                                    JIM R. WRIGHT
                                                    CHIEF JUSTICE


October 3, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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