                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-15-00413-CR


JOSEPH MIJIMU KAMANGA                                                APPELLANT

                                          V.

THE STATE OF TEXAS                                                         STATE


                                       ----------

           FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
                       TRIAL COURT NO. 1380917D

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                                     OPINION

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      A grand jury indicted Appellant Joseph Mijimu Kamanga for continuous

sexual abuse of a child,1 charging that

      through the 1st day of July, 2014, [he] did intentionally or knowingly,
      during a period of time that is 30 days or more in duration, commit
      two or more acts of sexual abuse, to wit: aggravated sexual assault
      of a child under 14 years of age by causing the sexual organ of the
      defendant to contact the sexual organ of [J.K].

      1
          See Tex. Penal Code Ann. § 21.02(b), (c)(4), (h) (West Supp. 2016).
A jury convicted Appellant of the offense, and the trial court sentenced him to

twenty-five years’ confinement.2 In one issue, Appellant contends that the trial

court abused its discretion by excluding impeachment evidence regarding a

verbal threat the complainant J.K. had allegedly made to Appellant before her

outcry. Because we hold that the trial court’s error was harmless, we overrule

Appellant’s sole issue and affirm the trial court’s judgment.

Facts

        Jennifer Meadows testified that she served as a volunteer parent

counselor at a church camp in the summer of 2014. J.K. was one of the thirteen

sixth-grade girls staying in the cabin supervised by Meadows. On the second or

third night of camp, Meadows noticed that J.K. was “really, really weepy” and

“really sad.” When they spoke after the service, J.K. told Meadows “that her

uncle had hurt her and that he had videotaped it so that you could tell it was her,

but he had told her that—you couldn’t tell it was him, and if she ever told

anybody, he would show her parents the videotape.” Meadows concluded that

J.K. was alluding to sexual abuse.        J.K. told Meadows that the acts and

videotaping occurred at the home of her uncle, Appellant, and last occurred two

months earlier.       J.K.’s physical demeanor indicated shame, according to

Meadows, because J.K. “kept dropping her face and not wanting to look at”

Meadows. Meadows stated that J.K. was ashamed, embarrassed, and scared.


        2
            See id.


                                         2
Meadows stopped J.K. from going into any detail and reported the conversation

to the church’s children’s director. Meadows also filled out a report that the

“security guy at church” provided to CPS.

      On the day she left church camp, J.K. gave more detailed information to

her parents and pastor and then to her extended family at a family meeting (a

meeting which included her parents, pastor, Appellant, aunts, and other uncles).

Over the next few days, J.K. spoke with a sexual assault nurse examiner, a CPS

investigator, and a forensic interviewer. About nine or ten months after her initial

outcry, J.K. met with an investigator appointed for the defense (defense

investigator). J.K., her father, other relatives, her pastor, the CPS investigator,

the sexual assault nurse examiner, and the forensic interviewer also testified.

The trial court admitted recordings of J.K.’s interviews with the CPS investigator,

the forensic interviewer, and the defense investigator.

      In her testimony at trial, J.K. confirmed that she had told Meadows that

Appellant had raped her. J.K. testified that it first happened when she was eight

years old and was spending the night at Appellant’s apartment with her cousin,

his daughter A.K. According to J.K., Appellant entered the bedroom in which she

was sleeping and woke her by removing her pajama pants; he also removed her

underwear and pulled his own shorts and underwear down. She testified that he

lay on top of her, told her not to scream, covered her mouth with his hands “so

hard,” “put his dick into [her] vagina,” and “started moving up and down.” J.K.

testified that it lasted “[a]bout 15 minutes.”   After Appellant finished, he re-


                                         3
dressed himself and J.K. and left. J.K. testified that she did not tell anyone

because she was so scared.

      J.K. testified that penile-vaginal penetration happened twice more when

she was nine years old and that it last happened the night before she left for

church camp; she was twelve years old then. J.K. also described an incident of

digital penetration that she said occurred when she was ten.

      On cross-examination, J.K. denied telling Meadows and her parents that

the last incident had occurred two months before church camp but admitted

telling her extended family at the family meeting, the forensic interviewer, and the

CPS investigator that it had occurred two months before camp and testified that

that was a lie. J.K. also admitting telling Meadows, the CPS investigator, and the

forensic interviewer that the sexual abuse had always happened at Appellant’s

home but testified that it had also happened at her home and that she had told

her parents that as well. She answered, “I don’t know,” when asked whether she

had lied to the CPS investigator. She later admitted that she had lied to both the

CPS investigator and the forensic interviewer.

      J.K. also admitted telling Meadows, her parents, and her pastor about

another child that Appellant had sexually abused, D.D., but lying to the CPS

investigator that she knew of no other complainants. J.K. testified that she told

the forensic interviewer that she saw Appellant drag the other girl into another

room but told the defense investigator that she was not present for that incident

and only heard about it.      J.K. admitted that she had lied to the defense


                                         4
investigator about that and about the last act of sexual abuse occurring at her

house. On redirect examination, though, J.K. said that she had been confused

about what the defense investigator was asking.

      J.K. also admitted that she had told the CPS investigator that Appellant

had touched her with his hands and that she had not mentioned “penis” or

“vagina” in that conversation. She further admitted that she had not discussed

digital penetration with the forensic interviewer.

      J.K. testified that she had lied because her aunt had told her to “just lie and

say that those things never happened.” J.K. further admitted telling the defense

investigator that she does not always tell the truth and was not sure that she was

going to tell the defense investigator the truth.

      The forensic interviewer testified that a “rolling outcry,” where children say

less initially than they eventually say, is common for abused children.

      Appellant’s wife and daughter denied that J.K. had spent the night with

them any place other than Haltom City.          Both testified that they were light

sleepers. Appellant’s wife testified that he did not leave their bed when J.K.

spent the night. His daughter testified that she was never awakened by any

screaming or struggling. Appellant’s wife and daughter agreed that Appellant

had entered the bedroom when J.K. was spending the night before the girls left

for camp. But both explained that he had gone into the bedroom to pray for the

girls’ safe journey and that his wife had gone into the bedroom with him and the

four had prayed together.


                                          5
      There was no physical evidence of the sexual assaults.

      The defensive theory of the case was that J.K. was lying about Appellant

sexually abusing her. The defense focused on the differing accounts she gave of

where the abuse occurred, when it occurred, and the acts it entailed. But the

defense also wanted to show the jury a motive for J.K.’s fabrication. On cross-

examination, J.K. denied having a bad attitude at church generally and denied

having a bad attitude at church a couple of weeks before church camp. The

following then transpired,

            Q.     [Defense Counsel] . . . [D]o you recall an incident where
                   a[n] usher named John told you to come inside the
                   church and you refused?

            A.     No.

            Q.     No? You were with your friend [D.D.]?

            A.     She don’t even go to my church.

            Q.     She went with you to your church sometimes, though,
                   right, as your guest?

            A.     Yes.

            Q.     You don’t remember any incident where the usher told
                   you to come inside and you refused?

            A.     No.

            Q.     And [Appellant] came out and you threatened him?

            A.     I didn’t.

            Q.     You didn’t. You don’t remember or it didn’t happen?

            A.     I don’t remember.




                                        6
            Q.    Have you ever told [Appellant], you keep following me
                  around and getting in my business, one day you’re
                  going to see?

            A.    No.

            Q.    No. You didn’t tell your friend [D.D.] he’s going to do
                  what I want someday?

            A.    No.

      Kalanga Kashanda, who goes by John, testified that he was a deacon at

the church and that he knew both Appellant and J.K. The following dialogue

occurred during John’s testimony,

            Q.    [Defense Counsel]. Okay. Now, was there a time you
                  came into contact with [J.K.] at the Pantego Bible
                  Church in June of 2014, last year?

            A.    I don’t remember exactly the day, but I’m sure it’s last
                  year.

            Q.    Okay. And what happened when you came into contact
                  with her?

            A.    My service like a deacon I supposed to bring in kids
                  from outside to go to church.

            Q.    So you bring in the kids from outside to come back in
                  the church?

            A.    Yes, sir. I went there, I find that there was, like, three or
                  four or five. I told them to go back in church, and she—
                  the one she said something like—

            [Prosecutor]:             Objection, hearsay.

            THE COURT:                Sustained.

            [Defense Counsel]:        Your Honor, may we approach?

            THE COURT:                Okay.

            (At the Bench, on the record)

                                         7
            [Defense Counsel]:       . . . I asked [J.K.] yesterday if she
                                    threatened him. He’s a witness—she
                                    said no, so this is impeachment.
                                    He’s going to testify as to the threat.

            THE COURT:              Response?

            [Other Prosecutor]:     He asked her if she threatened him,
                                    not—

            [Defense Counsel]:      I’m sorry. I asked [J.K.] on the stand
                                    if she threatened [Appellant]. She
                                    said she did not. Mr. Kalanga is a
                                    witness to that threat.

            THE COURT:              The hearsay objection is sustained.

            (Bench conference concluded)

            Q.    (BY [Defense Counsel]) John?

            A.    Yes, sir.

            Q.    Were you present at the Pantego Bible Church last
                  year, last summer when [J.K.] threatened [Appellant]?

            [Prosecutor]:           Objection, hearsay.

            THE COURT:              Sustained.

            [Defense Counsel]:      It didn’t call—

            THE COURT:              The objection is sustained.

            [Defense Counsel]:      No further questions, Your Honor.

Law and Analysis

      To preserve error regarding excluded evidence, the substance of the

excluded evidence must be shown by an offer of proof unless it is apparent from




                                      8
the context of the questions asked.3 Error may be preserved by an offer of proof

in question and answer form or in the form of a concise statement by counsel.4

Counsel’s concise statement must include a summary of the evidence offered.5

Error is not preserved if the offer of proof is inadequate.6

      While the issue of preservation is close, defense counsel did provide a

bare-bones summary of the testimony he expected to elicit from John. Defense

counsel stated, having questioned John about a day at church before the outcry,

“I asked [J.K.] yesterday if she threatened him. He’s a witness—she said no, so

this is impeachment. He’s going to testify as to the threat,” and defense counsel

clarified, “I asked [J.K.] on the stand if she threatened [Appellant]. She said she

did not.     Mr. Kalanga [John] is a witness to that threat.”    This statement as

clarified is a sufficient offer of proof regarding the excluded testimony to preserve

Appellant’s appellate challenge to the trial court’s ruling.

      The Texas Court of Criminal Appeals held in May of this year,

            The Texas Rules of Evidence permit the defendant to cross-
      examine a witness for his purported bias, interest, and motive
      without undue limitation or arbitrary prohibition. Rule 404(b) permits

      3
      Tex. R. App. P. 33.2; Tex. R. Evid. 103(a)(2); Holmes v. State, 323
S.W.3d 163, 168 (Tex. Crim. App. 2009).
      4
          Tex. R. Evid. 103(b); Holmes, 323 S.W.3d at 168.
      5
          Holmes, 323 S.W.3d at 168.
      6
       Id. at 171; see also Mays v. State, 285 S.W.3d 884, 890 (Tex. Crim. App.
2009) (holding that error was not preserved when appellant failed to proffer, with
some degree of specificity, the substantive evidence he intended to present).


                                           9
      the defense, as well as the prosecution, to offer evidence of other
      acts of misconduct to establish a person’s motive for performing
      some act—such as making a false allegation against the defendant.
      Rule 613(b) permits a witness to be cross-examined on specific
      instances of conduct when they may establish his specific bias, self-
      interest, or motive for testifying. Rule 412 specifically addresses the
      admissibility of evidence of a victim’s past sexual behavior. Such
      evidence is admissible if it “relates to the motive or bias of the
      alleged victim” or “is constitutionally required to be admitted,”  and if
      “the probative value of the evidence outweighs the danger of unfair
      prejudice.”

               ....

             . . . [E]vidence was admissible under Rule 412 because it
      related to H.H.’s motive to fabricate the accusation, was
      constitutionally required to be admitted under the Confrontation
      Clause, and the probative value outweighed the danger of unfair
      prejudice.7

      Unfortunately, neither the trial court nor trial or appellate counsel had the

benefit of the Texas Court of Criminal Appeals’s Johnson opinion. The evidence

of any threat by the complainant that is evidence of bias or motive to fabricate is

admissible, and the error in excluding such evidence can be of constitutional

magnitude, depending on the defendant’s complaint.8 Johnson also stands for

the broader proposition that a defendant is allowed to put on his defense, even

when his defense is that the complainant is lying.9 Here, Appellant offered the

evidence of J.K.’s threat for impeachment of her testimony denying her threats.


      7
       Johnson v. State, 490 S.W.3d 895, 910, 913 (Tex. Crim. App. 2016)
(footnotes omitted).
      8
          See id.
      9
          See id.


                                         10
      The evidence was not hearsay. Hearsay

      is an out-of-court statement “offered in evidence to prove the truth of
      the matter asserted.” Whether hearsay is admissible at a criminal
      trial is determined by the Texas Rules of Evidence and the Sixth
      Amendment of the U.S. Constitution.           Although the rules of
      confrontation and the rules of hearsay generally protect similar
      values, the overlap between the two is not complete.10

      Appellant sought to elicit a recitation of the words J.K. had spoken when

John told the youngsters to come inside to show that the words were spoken, not

to show that the content of the statement was true. An extrajudicial statement

which is offered for the purpose of showing what was said rather than for the

truth of the matter stated does not constitute hearsay.11 We therefore hold that

the trial court abused its discretion by sustaining the hearsay objection because

(1) Appellant was not offering John’s recitation of J.K.’s threats, if any, to

Appellant for their truth but to show that they were made and (2) Appellant was

allowed to impeach her.

      But Appellant did not mention or allude to either the federal or state

constitution. He only raised an evidentiary complaint, so we apply rule 44.2(b) of

the appellate rules of procedure in assessing harm.12 We therefore disregard the




      10
        Bays v. State, 396 S.W.3d 580, 593–94 (Tex. Crim. App. 2013) (citations
omitted); see also Tex. R. Evid. 801(d).
      11
       Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App.), cert. denied,
516 U.S. 832 (1995).
      12
           See Tex. R. App. P. 44.2(b).


                                          11
error if it does not affect substantial rights.13 A substantial right is affected when

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

jury’s verdict.14 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.”15

       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.16 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.17

       The only evidence before us about Appellant’s claims regarding the threat

is that J.K. may have resented his interference with her desire to make her own

decisions about how she lived her life. And although defense counsel alluded to

       13
            Id.
       14
       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)).
       15
        Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) (citation
and internal quotation marks omitted); Johnson v. State, 967 S.W.2d 410, 417
(Tex. Crim. App. 1998).
       16
            Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
       17
            Id. at 355–56.


                                           12
an overheard threat while questioning John, defense counsel did not explain at

that point the substance of the threat that he expected John to testify to having

overheard. Defense counsel did suggest while cross-examining J.K. that she

had said, “you keep following me around and getting in my business, one day

you’re going to see,” and “[H]e’s going to do what I want someday.” The jury

heard J.K. deny that she had said these things, and they also heard Appellant’s

trial counsel ask John, “Were you present at the Pantego Bible Church last year,

last summer when [J.K.] threatened [Appellant]?” Before John could answer, the

State lodged its hearsay objection, and the trial court sustained the objection.

But even before that exchange, John had attempted to volunteer a statement,

regarding bringing kids back into the church from outside, that “she—the one she

said something like—.”        Finally, at a bench conference defense counsel

requested in response to the trial court’s ruling, he made the following informal

offer of proof:

      I asked [J.K.] yesterday if she threatened him. He’s a witness—she
      said no, so this is impeachment. He’s going to testify as to the
      threat.

             ....

            I asked [J.K.] on the stand if she threatened [Appellant]. She
      said she did not. Mr. Kalanga [John] is a witness to that threat.

      There is no further offer of proof and no argument that the trial court’s

erroneous ruling constituted a violation of a constitutional right.




                                          13
         The case was a classic swearing match. The complainant testified to the

sexual assaults. Appellant and his wife and daughter denied that any sexual

abuse occurred. There was no physical evidence of the sexual assaults. The

jury heard the challenges to the veracity of J.K.’s testimony. The jury was aware

that there was no physical evidence of sexual abuse. The jury heard Appellant’s

suggestions that J.K. had made threats to punish him for interfering with her

freely enjoying her life as she chose. But the jury did not hear John confirm that

he had heard J.K. express a threat. And unlike the Johnson jury, there was no

evidence that this jury heard misrepresentations that the defendant was

prevented from challenging and that were likely to mislead the jury.18

         We conclude that, in the context of the entire case against Appellant, the

trial court’s error in excluding any evidence of a threat by J.K. did not have a

substantial or injurious effect on the jury’s verdict and did not affect Appellant’s

substantial rights.19 Thus, we disregard the error.20 We overrule Appellant’s

issue.

Conclusion

         Having overruled Appellant’s sole issue, we affirm the trial court’s

judgment.


         18
              See Johnson, 490 S.W.3d at 914.
         19
              See King, 953 S.W.2d at 271.
         20
              See Tex. R. App. P. 44.2(b).


                                             14
                                        /s/ Lee Ann Dauphinot
                                        LEE ANN DAUPHINOT
                                        JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

PUBLISH

DELIVERED: September 29, 2016




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