             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________
           No. 02-18-00476-CR
      ___________________________

 RONNIE MICHAEL HOPPER , Appellant

                     V.

          THE STATE OF TEXAS




   On Appeal from the 30th District Court
         Wichita County, Texas
        Trial Court No. 60,066-A


Before Sudderth, C.J.; Womack and Wallach, JJ.
  Memorandum Opinion by Justice Wallach
                           MEMORANDUM OPINION

       A jury found Appellant Ronnie Michael Hopper guilty of one count of

aggravated sexual assault of a child under the age of fourteen (Count One) and two

counts of indecency with a child by sexual conduct (Counts Two and Three). The

jury assessed his punishment at twenty-five years’ confinement for aggravated sexual

assault of a child and three years’ confinement for each count of indecency with a

child by sexual conduct. See Tex. Penal Code Ann. §§ 21.11(a)(1), 22.021(a). The trial

court sentenced Appellant accordingly, ordering that the sentences for Counts One

and Two run concurrently and that the sentence for Count Three run consecutively to

the other two sentences.

       Appellant filed motions for new trial, which the trial court denied. Appellant

then timely filed a notice of appeal. In three points, he complains that the trial court

erred by excluding impeachment evidence, by admitting inadmissible hearsay, and by

refusing to give the jury an instruction to disregard after sustaining his objection to

evidence of extraneous conduct.        Because we hold that the trial court did not

reversibly err, we affirm the trial court’s judgments.




                                            2
                                   BRIEF FACTS 1

      Complainant A.R. (Amy) 2 reported to her seventh-grade math teacher that

Appellant, her stepfather, had sexually abused her. Then, Amy told her school

counselor that Appellant had sexually abused her that day and indicated by body

movements that he had touched her breasts and genitals. The counselor called Amy’s

mother (Mother) and directed Amy to use her cell phone to call Mother as well.

When Mother arrived at the school, she was very angry and accused Amy of lying

about the sexual abuse.

      The day after Amy reported Appellant’s sexual abuse to her teacher and school

counselor, Amy gave a detailed account to a forensic interviewer about Appellant’s

sexually abusing her over a period of time, specifically describing the sexual abuse that

occurred the day before as well as another incident of sexual abuse that occurred

approximately a year earlier. A sexual assault nurse examiner (SANE) then performed

a medical examination of Amy. Amy told the SANE that Appellant had sexually

abused her the previous day, and the SANE found discoloration, tearing, and

abrasions on Amy’s genitals consistent with her account.



      1
       Appellant does not challenge the sufficiency of the evidence supporting his
convictions. We therefore omit a detailed statement of facts.
      2
       We use aliases to refer to the minor complainant, her peers, and her mother.
See 2d Tex. App. (Fort Worth) Loc. R. 7; see also Tex. R. App. P. 9.8(a), 9.10.



                                           3
          Amy engaged in self-harm, cutting her arms and thighs, after reporting the

sexual abuse. However, she had also engaged in cutting behavior before the alleged

sexual abuse began. Because of the post-outcry cutting, Amy stayed a week in a

mental health facility. Appellant was indicted for the sexual abuse prompting the

outcry as well as for the incident of sexual abuse occurring approximately a year

earlier that Amy relayed to the forensic interviewer.

                                     DISCUSSION

I.        Standard of Review

          We review the admission or exclusion of evidence for an abuse of discretion,

which the record shows only when the ruling falls outside the zone of reasonable

disagreement. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016); Wall v.

State, 184 S.W.3d 730, 743 (Tex. Crim. App. 2006); Merrick v. State, 567 S.W.3d 359,

375 (Tex. App.—Fort Worth 2018, pet. ref’d). We will uphold the trial court’s correct

decision under any applicable legal theory even if the trial court gave a wrong or

incomplete reason for its ruling. De la Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim.

App. 2009); Qualls v. State, 547 S.W.3d 663, 675 (Tex. App.—Fort Worth 2018, pet.

ref’d).

          We also review the denial of an instruction to disregard evidence for an abuse

of discretion. See Maldonado v. State, No. 10-11-00299-CR, 2013 WL 3847052, at

*8 (Tex. App.—Waco July 25, 2013, no pet.) (mem. op., not designated for

publication) (“[W]e will assume without deciding that the trial court abused its

                                             4
discretion in failing to give an instruction to disregard” a question about a sawed-off

shotgun that was in evidence); Lambertz v. State, No. 01-00-00633 CR,

2002 WL 1821982, at *3 (Tex. App.—Houston [1st Dist.] Aug. 8, 2002, pet. ref’d); cf.

Stewart v. State, 221 S.W.3d 306, 310 (Tex. App.—Fort Worth 2007, no pet.) (holding

standard of review for refusing curative instruction to line of questioning is abuse of

discretion).

II.    Impeachment

       Appellant’s first point challenges the exclusion of impeachment evidence

against Amy. The trial court admitted Amy’s post-outcry mental health records at

trial. However, to support the defensive theory that Amy caused the injuries the

SANE found during the exam, Appellant also wanted the trial court to admit Amy’s

pre-outcry writings and cell-phone data that showed she had depression and suicidal

ideations, cut herself, and talked about sex with peers before the sexual abuse

prompting her outcry.

       Amy’s pre-outcry writings that Appellant wanted the trial court to admit at trial

were in a binder Mother found in Amy’s bedroom after Amy moved out. The trial

court admitted “the portions of the [binder] . . . that talk[] about [Amy’s] feelings

towards [Appellant]” as Defendant’s Exhibit 3. However, the trial court excluded the

rest of the binder’s contents and all the cell-phone data.

       As the Texas Court of Criminal Appeals has explained,



                                            5
              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 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.

Johnson v. State, 490 S.W.3d 895, 910 (Tex. Crim. App. 2016). Generally, limiting a

defendant’s right to cross-examine a witness is within a trial court’s discretion.

Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009). For impeachment

evidence to be admissible, the defendant needs to establish a “causal connection or

logical relationship” between the evidence and the witness’s alleged bias or motive.

Johnson v. State, 433 S.W.3d 546, 552 (Tex. Crim. App. 2014) (citation and internal

quotation marks omitted); Tristan v. State, 393 S.W.3d 806, 810–11 (Tex. App.—

Houston [1st Dist.] 2012, no pet.).     We recognize that this requirement cannot

impinge on a defendant’s right “to explore any plausible basis for witness bias.” Jones

v. State, 571 S.W.3d 764, 769 (Tex. Crim. App. 2019); Pabon v. State, No. 02-18-00517-

CR, 2019 WL 4122611, at *4 n.3 (Tex. App.—Fort Worth Aug. 29, 2019, no pet.)

(mem. op., not designated for publication).

      A.     The State’s Forfeiture Argument

      The State argues that the trial court based its ruling excluding the proffered

evidence on Rule 403 and that Appellant forfeited his point by not discussing Rule




                                          6
403 in his brief. The basis of the trial court’s ruling is unclear. We will therefore

address Appellant’s first point.

      B.     No Preservation of a Constitutional Claim

      Appellant references the Sixth Amendment right to cross-examination in the

discussion of his first point, but, as the State argues, he did not raise a constitutional

challenge to the exclusion of the impeachment evidence in the trial court.            To

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

timely request, objection, or motion stating the specific grounds, if not apparent from

the context, for the desired ruling.     Tex. R. App. P. 33.1(a)(1); Thomas v. State,

505 S.W.3d 916, 924 (Tex. Crim. App. 2016). Because Appellant did not raise a Sixth

Amendment challenge to the exclusion of the impeachment evidence in the trial

court, he did not preserve a constitutional complaint for appeal. See Golliday v. State,

560 S.W.3d 664, 670–71 (Tex. Crim. App. 2018). We therefore overrule that portion

of his first point claiming the exclusion of the impeachment evidence violates his

Sixth Amendment right to cross-examination.

      C.     Sex-Related Cell-Phone Data

      Appellant argues on appeal that the exclusion of Amy’s “sexually charged

conversations with her peers” barred him from asking her about other possible causes

of the discoloration, tearing, and abrasions on her genitals. The State argues that the

excluded sex-related evidence was irrelevant under Rule 401 to show that a source



                                            7
other than Appellant was responsible for Amy’s injuries that the SANE observed and

that the evidence was alternatively inadmissible under Rule 412.

      Evidence must be relevant to be admissible. Tex. R. Evid. 402. Evidence is

relevant when “it has any tendency to make a fact more or less probable than it would

be without the evidence[] and . . . the fact is of consequence in determining the

action.” Tex. R. Evid. 401. Rule 412 generally excludes evidence of an alleged sexual

assault victim’s past sexual conduct. Tex. R. Evid. 412(a), (e). However, evidence of

specific instances of an alleged victim’s past sexual behavior is admissible if its

probative value outweighs dangers of unfair prejudice and it

      (A)    is necessary to rebut or explain scientific or medical evidence
             offered by the prosecutor;
      (B)    concerns past sexual behavior with the defendant and is offered
             by the defendant to prove consent;
      (C)    relates to the victim’s motive or bias;
      (D)    is admissible under Rule 609; or
      (E)    is constitutionally required to be admitted.
Tex. R. Evid. 412(b).

      Our review of Appellant’s Bill of Exceptions shows that Amy had the

following textual exchange with a peer:

      [Amy:]        So u like [Charlie’s] dick
      [Faye:]       Why[]?
      [Amy:]        Tell him the story about [Kay] Not actually getting raped
      [Faye:]       Not [Kay] when I was little I almost got raped

                                            8
      [Amy:]        Trust me there’s a story I haven’t told you And I’m not
                    going to tell you
      [Faye:]       Ooh
The excluded cell-phone evidence also included a reposting of a “game” with listed

items such as: “Am I sexy or ugly,” “Kiss or fuck me,” “If I wanted to fuck would

you let me,” “How you feel about me (sexual wise),” “[W]ould u let me take your

virginity,” and “Could you see us dating.” The trial court further ruled that Appellant

could not cross-examine Amy about the excluded evidence.           Appellant did not

question Amy in making his Bill.

      None of the excluded cell-phone evidence bears a plausible link to the evidence

of trauma to Amy’s genitals. It is therefore not relevant. See Tex. R. Evid. 401; Snow

v. State, No. 02-17-00310-CR, 2019 WL 237734, at *9–10 (Tex. App.—Fort Worth

Jan. 17, 2019, no pet.) (mem. op., not designated for publication); Hale v. State,

140 S.W.3d 381, 396–97 (Tex. App.—Fort Worth 2004, pet. ref’d). Even if the

excluded evidence had general relevance under Rule 401, it would not be admissible

under Rule 412 in this instance because there is no link between it and any alleged

motive or bias on Amy’s part to falsely accuse Appellant of sexual abuse and it does

not rebut or explain the SANE’s testimony. See Tex. Rule Evid. 412(b)(2)(A), (C);

Snow, 2019 WL 237734, at *9; Alford v. State, 495 S.W.3d 63, 67 (Tex. App.—Houston

[14th Dist.] 2016, pet. ref’d) (holding the excluded evidence “does not explain how or

when [the complainant] sustained the hymen tear, let alone rebut the specific charge at



                                          9
issue”); Stephens v. State, 978 S.W.2d 728, 734–35 (Tex. App.—Austin 1998, pet. ref’d)

(holding defendant failed to demonstrate “definite and logical link” between

complainant’s sexual behavior and alleged motive); Cooper v. State, 959 S.W.2d 682,

684–85 (Tex. App.—Austin 1997, pet. ref’d) (holding that evidence of complainant’s

sexual relations with boyfriend to prove she had fabricated accusation against

defendant to conceal her relationship with boyfriend was not sufficiently connected to

her motive to fabricate). Because we hold that the sex-related evidence is not relevant

and even if it had general relevance, it would not have been admissible under Rule

412, we also hold that the trial court did not abuse its discretion by excluding it. See

De la Paz, 279 S.W.3d at 344; Qualls, 547 S.W.3d at 675 (“If the trial court’s decision

to admit or exclude evidence is correct under any applicable legal theory, we will

uphold that decision even if the trial court gave a wrong or incomplete reason for its

ruling.”).

       D.    Evidence of Amy’s Mental Health

       Other evidence in Appellant’s Bill of Exceptions shows that Amy experienced

loneliness, alienation, depression, and suicidal ideations and engaged in cutting

behavior. Appellant argues that he wanted to introduce this evidence to show that

Amy “was experiencing mental distress prior to the offenses as a basis for her bias or

motivation” and to rebut the State’s assertion that she suffered from mental trauma

because she had been sexually assaulted. He contends that the exclusion of the

mental health evidence left the jury with the false impression that Appellant was solely

                                          10
responsible for the decline in Amy’s mental health.         The State argues that the

challenged evidence is cumulative of evidence admitted without objection and

therefore any error in excluding it is harmless.

      Initially, we note that Amy’s forensic interview indicated that the sexual abuse

began at least as early as “around spring break” of 2016, when Amy would have been

twelve or almost twelve years old. Those items in the exhibit that are dated are from

2017. While they may have shown Amy’s mental distress before her outcry and the

same-day sexual abuse that precipitated it, they were not relevant to show Amy’s

mental distress before the sexual abuse began. See Tex. R. Evid. 401, 402.

      Regardless, other evidence admitted without objection showed Amy’s mental

state before the sexual abuse began and that other events contributed to her mental

distress. Mother testified that Amy began complaining “in sixth grade or so” about

other students bullying her because of her weight. Amy testified that she believed that

she had begun cutting herself when she was eleven years old and that she engaged in

cutting because of bullying at school, the sexual abuse, and the deterioration of her

relationship with Mother after the outcry. Further, Amy’s mental health records

admitted without objection as State’s Exhibit Number One provide:

      •      “The patient had a history of self-mutilation by laceration to relieve
             stress dating back to the 6th grade.”

      •      “[Amy] stated that she was bullied in the 5th & 6th grade . . . .”

      •      “Patient reported that she has been cutting since the age of 11. She
             stated that she started cutting because of the bullying . . . .”

                                           11
       Thus, the jury received ample evidence showing Amy’s mental health issues

before the sexual abuse began. Therefore, even if the trial court abused its discretion

by excluding Appellant’s proffered evidence—a holding we do not reach—any error

in excluding Amy’s writings and cell-phone data was harmless. See Tex. R. App. P.

44.2(b); Lindsay v. State, 102 S.W.3d 223, 230 (Tex. App.—Houston [14th Dist.] 2003,

pet. ref’d) (“When a trial judge excludes cumulative evidence, it is harmless error.”); cf.

Johnson v. State, 925 S.W.2d 745, 749 (Tex. App.—Fort Worth 1996, pet. ref’d)

(applying former Rule 81(b)(2) and concluding, “[A]ny error in excluding the evidence

would have had no impact on the outcome of the trial because the same evidence had

already been admitted without objection.          Consequently, any error would be

harmless.”). We overrule Appellant’s first point.

III.   Admission of Hearsay

       In his second point, Appellant contends that the trial court abused its

discretion by admitting the counselor’s hearsay testimony that Mother “was very

adamant that [Amy] was lying [about the sexual abuse], that [Amy] was making it up,”

and the error was harmful because it inflamed the jury’s emotions against Mother,

who was a key witness for the defense. The State responds that (1) the trial court did

not abuse its discretion because Mother’s statement was an excited utterance, and

(2) even if the trial court abused its discretion, Mother’s statements and belief that

Amy lied about the sexual abuse were admitted without objection elsewhere,

rendering any error harmless. Without addressing the admissibility of the testimony,

                                            12
we hold that Appellant forfeited his point by not timely and repeatedly objecting to

the counselor’s testifying about Mother’s hearsay statements alluding to the falsity of

Amy’s allegations, and in the interest of justice, we note that any error would have

been harmless.

      Because it is a systemic requirement, this court should independently review

error preservation, and we have a duty to ensure that a claim is properly preserved in

the trial court before we address its merits. Darcy v. State, 488 S.W.3d 325, 327–

28 (Tex. Crim. App. 2016). To preserve a complaint for our review, a party must have

presented to the trial court a timely request, objection, or motion stating the specific

grounds, if not apparent from the context, for the desired ruling. Tex. R. App. P.

33.1(a)(1); Thomas, 505 S.W.3d at 924. A party must object as soon as the basis for the

objection becomes apparent. Tex. R. App. P. 33.1(a)(1); Tex. R. Evid. 103(a)(1);

Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002) (“We have consistently

held that the failure to object in a timely and specific manner during trial forfeits

complaints about the admissibility of evidence.” (citations omitted)); Dinkins v. State,

894 S.W.2d 330, 355 (Tex. Crim. App. 1995); Lozano v. State, 359 S.W.3d 790,

823 (Tex. App.—Fort Worth 2012, pet. ref’d); see Lackey v. State, 364 S.W.3d 837, 843–

44 (Tex. Crim. App. 2012) (discussing policies underlying the timeliness requirement).

Generally, a party must object each time the objectionable evidence is offered. Geuder

v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Martinez v. State, 98 S.W.3d 189,

193 (Tex. Crim. App. 2003); Clay v. State, 361 S.W.3d 762, 766 (Tex. App.—Fort

                                          13
Worth 2012, no pet.). A trial court’s erroneous admission of evidence will not require

reversal when other such evidence was received without objection before or after the

complained-of ruling. Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App.

2010) (citing Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)); Lane v State,

151 S.W.3d 188, 193 (Tex. Crim. App. 2004); Qualls, 547 S.W.3d at 681.

      In the State’s direct examination of the counselor, the following occurred:

      Q.     What do you recall about [Mother]’s demeanor when she arrived?
      A.     She was very angry. I would say she forcefully kinda pushed
             the—I mean, it was abrupt opening the door into my office, did
             not acknowledge anybody. She looked at [Amy] and—I want to
             make sure that—she accused [Amy], she said, you know, you better not
             be lying, was one thing, and you’re gonna make me choose sides,
             either my husband or—you know, or [Amy]. She never—I think
             at one time she did ask her, so when did this happen, and when
             she told her, she said, well, that couldn’t happen because he was in bed
             with me.
      Q.     Did you consider [Mother]’s demeanor to be appropriate given
             the circumstances?
      A.     No.
      Q.     Did it concern you regarding [Mother]’s demeanor?
      A.     Yes.
      Q.     What did you do at that point recognizing with regard to your
             concerns about the way that [Mother] was reacting to this?
      A.     It was not what—I’m sorry. It’s not what I would expect a
             mother to do for their child, and it caught me off guard because
             I’ve had students make reports in the past. I would contact the
             parent and the parent would always be upset and console their
             child, say what’s wrong. She didn’t do any of that. Sorry. She



                                            14
             even said at one time that—this really struck me—now I’m gonna
             have to find another boyfriend.
      Q.     When [Mother] is saying these things to [Amy], how is [Amy]
             reacting?
      A.     She’s crying. And I know [Mother] was like, you know, this is
             serious, and she said, I know. And she just kept going on and was like,
             he wouldn’t do that, he’s not that type of person.
      ....
      Q.     What happens next?
      A.     I asked—because, I mean, I was just kind of in shock. I thought
             oh my gosh, what—you know, I was just so caught off guard.
             And I asked [Amy], I said, could you just go right outside my
             office. . . . And she went outside. And [former stepfather] was
             still in there and [Mother], and I tried to talk to her and say, you
             know, often, you know, it’s—it’s not somebody you would
             suspect, you know. I’m trying to get her to at least consider that
             this could have happened. She was very adamant that [Amy] was lying,
             that [Amy] was making it up.
      [Defense Counsel]: Your Honor, I object to hearsay.
      THE COURT: Overruled.

[Emphasis added.]

      As the above excerpt shows, the counselor testified to Mother’s statements

indicating that Amy was lying and that Mother disbelieved the allegations more than

once before Appellant objected. That objection therefore came too late to preserve

error. See Tex. R. Evid. 103(a)(1); Lozano, 359 S.W.3d at 823.




                                           15
      However, even if Appellant had preserved error in this instance, it would be

harmless. In addition to the counselor’s unobjected-to statements about Mother’s not

believing the allegations, the jury received the following unobjected-to evidence:

      •      Amy’s former stepfather testified that when Mother entered the
             counselor’s office, “She looked right at [Amy] and said, ‘[Y]ou know
             lying’s bad.’”

      •      Amy’s mental health records provide that Amy stated “that she does not
             have a good relationship with . . . Mother because she called [Amy] a liar
             when [Amy] told her about [Appellant] being sexually inappropriate with
             her.”

      •      Mother testified that she “kinda figured that, you know, it wasn’t true”
             when she went to the counselor’s office and that she “just walked in and
             told [Amy] that telling a lie like this can ruin somebody’s life.”

      •      Mother also testified that “once [she] heard the allegations, [she] knew
             they weren’t true.”

      •      Finally, Mother testified, “[M]y daughter is lying.”
Because all of these other statements indicating that Mother told Amy she was lying

and that Mother believed Amy was lying about Appellant’s sexually abusing her were

admitted for the jury’s consideration, any error in admitting the counselor’s testimony

that Appellant objected to was harmless. See Estrada, 313 S.W.3d at 302 n.29; Lane,

151 S.W.3d at 193; Qualls, 547 S.W.3d at 681. We overrule Appellant’s second point.

IV.   Denial of Instruction to Disregard

      In Appellant’s third point, he contends that the trial court erred by failing to

grant his requested instruction to disregard after sustaining his objection to extraneous

conduct. Before trial, the State gave notice of its intent to introduce evidence of


                                           16
Appellant’s prior bad acts, including that in the summer of 2016, while Amy was

swimming with a friend, he touched Amy’s inner thigh and also repeatedly brushed

his body against her friend, making both girls uncomfortable. During trial, the trial

court held a hearing outside the jury’s presence about the admissibility of Appellant’s

extraneous acts. During the hearing, Amy testified that in addition to Appellant’s

touching her sexually, on three occasions, he had forced her to touch his penis. Amy

did not discuss the pool incident in the hearing. Nevertheless, at the end of the

hearing, the State told the trial court that it intended to offer “under No. 2 [of its

notice] . . . A through F” but was not offering “No. 3 in [its] notice at th[at] time.”

Appellant stated “no objection.” The trial court admitted “the matters . . . considered

in the hearing . . . for the purposes stated” and stated that the jury would be instructed

accordingly in the jury charge.

      Numbers 2 and 3 of the State’s Notice of Intent to Introduce Prior

Convictions and/or Adjudications and/or Extraneous Offenses or Bad Acts provide:

      2) In a meeting with [Amy] on June 29, 2018, she disclosed to
         [prosecutors] the following:
             a. That during the incident disclosed regarding the allegation of
                aggravated sexual assault in this case that [Appellant] also
                pulled her hand and made [her] touch his penis under his
                clothing.
             b. [Amy] further disclosed that prior to the incidents alleged in
                Counts 1–3 of the indictment that a separate incident occurred
                in which [Appellant] sat next to [her] on the couch while she
                was watching a movie. [Appellant] then put his hand under
                the blanket that she was using and under her clothes and


                                           17
                penetrated her vagina with his finger. The incident ended
                when [Mother] called [Appellant] on his cell phone.
            c. [Amy] further disclosed that during the incident alleged in
               Count 3 of the indictment [Appellant] did insert his finger into
               [her] vagina.
            d. [Amy] further disclosed that on or about the Summer of 2016
               that [she] was getting a new bed and was sleeping on an air
               mattress. [Appellant] placed his finger inside of [her] vagina.
               In addition, [Appellant] pulled [her] hand onto [his] penis
               several times but [she] continued to pull her hand away.
            e. [Amy] further disclosed that on or about the Summer of 2016 that [she]
               was in a swimming pool with [Appellant] and [her friend Mary]. While
               in the swimming pool, [Appellant] did touch [Amy’s] inner thigh . . . and
               [he] repeatedly brushed his body against [Mary], making both females feel
               uncomfortable.
            f. [Amy] further disclosed that she began feeling uncomfortable
               when [Appellant] would come into her room and rub her back
               as she was l[]ying down. [Appellant] would not say anything.
      3) On or about June 1, 2016, in Wichita County, Texas, [Appellant] did
         then and there intentionally or knowingly cause physical contact with
         [Mary], by passing and/or rubbing [his] body against her[s] in a
         swimming pool, and [he] knew or should have reasonably believed
         that [she] would regard the contact as offensive or provocative.

[Emphasis added.]

      In the State’s direct examination of Amy in the jury’s presence, the prosecutor

asked if she remembered “any other times of [Appellant] touching [her]

inappropriately,” and Amy answered, “There was one time in the pool. My best

friend—.” Appellant objected, “Your Honor, I’m gonna object to this.” The trial

court sustained the objection, and the prosecutor told Amy, “[I]t’s okay. You didn’t

do anything wrong. Okay? Let’s not talk about that incident.” Amy answered,


                                            18
“Okay.” The prosecutor began asking another question: “Do you remember the

incident—,” and Appellant then stated, “Your Honor, I’m gonna ask that the jury be

instructed to disregard.” The trial court overruled that request.

      Specifically, Appellant argues that the trial court abused its discretion by not

instructing the jury to disregard Amy’s testimony alluding to an extraneous offense

after sustaining his objection to the testimony. The State responds that Appellant

forfeited his complaint because his request for the instruction was late and unclear.

We hold that any error was forfeited and harmless.

      The question posed to Amy concerned other inappropriate touching of her by

Appellant. The answer she began, “There was one time in the pool. My best

friend—” is responsive to the prosecutor’s question and alludes to Appellant’s

extraneous conduct against her contained in subsection (2)(e) of the State’s notice,

conduct to which Appellant lodged “no objection” in the hearing. By failing to object

in the hearing, Appellant forfeited any error. See Tex. R. App. P. 33.1(a)(1); Thomas,

505 S.W.3d at 924.

      Even if Appellant’s statement of “no objection” and the trial court’s admission

of “the matters . . . considered in the hearing for the purposes stated” did not

encompass Appellant’s touching Amy’s inner thigh in the pool, even if Amy’s

testimony nonresponsively alluded to the criminal allegation in Number 3 of the

State’s notice, and even if that allegation was inadmissible under Article 38.37, see Tex.



                                           19
Code Crim. Proc. Ann. art. 38.37, § 1(b), 3 Appellant’s request for an instruction to

disregard Amy’s testimony lacked sufficient specificity. To preserve a complaint for

our review, a party must have presented to the trial court a timely request, objection,

or motion stating the specific grounds, if not apparent from the context, for the

desired ruling. Tex. R. App. P. 33.1(a)(1); Fuller v. State, 827 S.W.2d 919, 926 (Tex.

Crim. App. 1992) (“To preserve error, . . . the most important procedure is to press

the specific objection to the point of obtaining an adverse ruling, be that to the

objection, the request for an instruction, or the motion for mistrial.”); Walker v. State,

440 S.W.2d 653, 660 (Tex. Crim. App. 1969) (upholding “the trial court’s refusal to

heed [defendant’s] written objection and instruct the jury ‘to disregard the actions, if

any, of Jim Langford as presented in the evidence of this case’” on the basis that “this

objection is too broad and vague and does not distinctly specify the ground of error

and does not point out to the court which actions of [defendant’s] companion at the

time in question and a defense witness to which he has reference”).




             Notwithstanding Rules 404 and 405, Texas Rules of Evidence,
             3

      evidence of other crimes, wrongs, or acts committed by the defendant
      against the child who is the victim of the alleged offense shall be
      admitted for its bearing on relevant matters, including: (1) the state of
      mind of the defendant and the child; and (2) the previous and
      subsequent relationship between the defendant and the child.

      Tex. Code Crim. Proc. Ann. art. 38.37, § 1(b).



                                           20
       We cannot determine from Appellant’s general request for an instruction to

disregard whether he wanted the trial court to instruct the jury to disregard Amy’s

testimony, the prosecutor’s statement to her that she did nothing wrong, the

prosecutor’s statement directing her not to talk about “that incident,” or the

prosecutor’s new question beginning, “Do you remember the incident—.” By failing

to specify what he wanted the trial court to instruct the jury to disregard, Appellant

forfeited any error.

       Even if error had been preserved, however, it would be harmless. Because the

error is not constitutional, Stewart, 221 S.W.3d at 310, we apply Rule 44.2(b). Tex. R.

App. P. 44.2(b). That Rule requires us to disregard any nonconstitutional error that

does not affect an appellant’s substantial rights. Id. An error that has a “substantial

and injurious effect or influence in determining the jury’s verdict” affects a substantial

right. Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005); 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)

(citation and internal quotation marks omitted); Johnson v. State, 967 S.W.2d 410,

417 (Tex. Crim. App. 1998). In determining the likelihood that a nonconstitutional

error adversely affected the jury’s decision, we review the record as a whole, including

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

                                           21
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 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. Haley,

173 S.W.3d at 518–19; Motilla, 78 S.W.3d at 355–56. When an error that occurs in the

guilt-innocence phase of a trial does not likely move the jury from a state of

nonpersuasion to a state of persuasion concerning the defendant’s guilt, the error is

harmless. Murkledove v. State, 437 S.W.3d 17, 29 (Tex. App.—Fort Worth 2014, pet.

ref’d).

          Error, if any, is harmless in this case. First, no other evidence refers to the

incident in the pool involving Appellant, Amy, and her friend. The State’s first

witness, Jennifer Edwards, a licensed sex offender treatment provider, testified

generally that a child sex offender’s grooming of a child “will usually start with

caressing the thigh or having the victim sit on their lap, maybe playing with them in

the swimming pool . . . .” She also testified that when penile plethysmographs are

administered, the person might be shown “kids in swimsuits” accompanied by audio

describing a sexual scenario. However, besides Amy’s words, “There was one time in

the pool. My best friend—,” no other evidence referred to swimming, the pool, or




                                            22
the incident involving Appellant, Amy, and a friend, nor did the parties refer to

swimming or the pool in voir dire, opening statements, or closing arguments. 4

       Second, the trial court instructed the jury on multiple occasions to consider only

admitted evidence. After voir dire, the trial court told jurors to decide Appellant’s

guilt based “only on evidence admitted in open court”                    and to “obey all the

instructions [they had] received and others that [they would] be given during trial.”

Before opening statements, the trial court instructed the jury that it could not

“consider anything to which an objection is sustained,” and in the jury charge on

guilt-innocence, the trial court instructed the jury that it could consider “only . . . facts

and circumstances in evidence.” Absent evidence to the contrary, we usually presume

that a jury follows a trial court’s instructions. Gamboa v. State, 296 S.W.3d 574,



       Appellant argues that the swimming incident “was the first topic, and the only
       4

contested factual topic, mentioned in the State’s initial closing.” He is mistaken.
What the prosecutor actually said was this:

               I want to briefly go over something in the Jury Charge. If you
       would, just turn to No. 10 on Page 4. As Judge Brotherton was reading
       that, you may have wondered what is he talking about there. . . . [Y]ou
       heard testimony from [Amy] that there were other acts committed by
       this Defendant against her that are not part of the actual indictment.
       Those are other acts that she says that he committed against her and that
       is what it’s referring to. Specifically she said that he made her touch his penis. In
       addition, she talked about the second living room incident. And as you recall,
       there’s only one living room incident under indictment. So that’s what
       No. 10 is referring to if you have any questions about that. [Emphasis
       added.]



                                                23
580 (Tex. Crim. App. 2009); Thomas v. State, 461 S.W.3d 305, 311 (Tex. App.—Fort

Worth 2015, no pet.).

      Third, the evidence supporting Appellant’s guilt was strong.           See Motilla,

78 S.W.3d at 355.       Amy testified about the charged conduct as well as several

extraneous, admissible acts of sexual abuse Appellant committed against her. The

SANE saw “fairly new” genital injuries that were consistent with Amy’s outcry, and

the forensic interviewer’s testimony also supported the charged conduct. The jury

heard the testimony of both Amy and Appellant and by convicting Appellant, showed

its belief in her credibility. See Franklin v. State, 193 S.W.3d 616, 620 (Tex. App.—Fort

Worth 2006, no pet.) (“[T]he jury is free to accept or reject any or all of the evidence

of either party, and any or all of the testimony of any witness.”).

      For all these reasons, we hold harmless any error in the trial court’s refusal to

give the requested instruction to disregard. We overrule Appellant’s third point.

                                   CONCLUSION

      Having overruled Appellant’s three points, we affirm the trial court’s

judgments.




                                            24
                                   /s/ Mike Wallach
                                   Mike Wallach
                                   Justice

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

Delivered: February 6, 2020




                              25
