Affirmed and Opinion filed August 14, 2018.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-17-00097-CR

               JEFFERSON KEITH-OLAN MCMINN, Appellant
                                          V.
                        THE STATE OF TEXAS, Appellee

                    On Appeal from the 185th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1490840

                                  OPINION

      A jury found appellant Jefferson Keith-Olan McMinn guilty of “super”
aggravated sexual assault of a child younger than six years of age by causing the
child’s mouth to contact appellant’s sexual organ. See Tex. Penal Code
§ 22.021(a)(1)(B)(v), (a)(2)(B), (f)(1). The trial court assessed an agreed punishment
of confinement for thirty years. Appellant challenges his conviction in four issues,
contending that (1) the evidence is insufficient; (2) the trial court erred by admitting
hearsay; (3) the trial court erred by denying appellant’s motion to testify free from
impeachment; and (4) the trial court erred by excluding evidence of the child’s
grandmother’s alleged bias against appellant.

      We affirm.

                       I.     SUFFICIENCY OF THE EVIDENCE

      In his first issue, appellant contends that the evidence is insufficient to support
his conviction because (1) appellant denied that he caused the child’s mouth to
contact his sexual organ, (2) the child’s grandmother “coached” the child, and (3)
the child was not credible.

A.    Standard of Review and Legal Principles

      In a sufficiency review, we must consider all of the evidence in the light most
favorable to the jury’s verdict to determine whether, based on that evidence and
reasonable inferences therefrom, any rational juror could have found the essential
elements of the crime beyond a reasonable doubt. Balderas v. State, 517 S.W.3d 756,
765–66 (Tex. Crim. App. 2016). We defer to the jury’s responsibility to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts. Id. at 766. The jury is the sole judge of the
credibility and weight to be attached to witness testimony, and we must defer to the
jury’s resolution of conflicting inferences that are supported by the record. See id.

      We measure the sufficiency of the evidence by the elements of the offense as
defined by the hypothetically correct jury charge for the case. Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge
includes the statutory elements of the offense as modified by the charging
instrument. Johnson v. State, 364 S.W.3d 292, 294 (Tex. Crim. App. 2012). In this
case, the State had to prove that appellant intentionally or knowingly caused the



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mouth of the child to contact appellant’s sexual organ. See Tex. Penal Code
§ 22.021(a)(1)(B)(v), (a)(2)(B).

B.    The Evidence

      Appellant is the child’s great uncle. The child’s grandmother has had custody
of the child since the child was two years old because the child’s parents were “meth
users.” The grandmother’s sister and appellant were married and lived nearby. The
child was five years old at the time of trial.

      The grandmother testified as the outcry witness. The grandmother testified
that appellant’s wife would sometimes babysit the child and that there was usually
no opportunity for appellant to be alone with the child. However, appellant was alone
with the child on two occasions in April and August 2015, when the child was three
and four years old, respectively. A few weeks after the second occasion, the child
told the grandmother, “Uncle Keith goes tee-tee with his big thing.” When the
grandmother asked appellant’s wife about the comment, the wife explained that
appellant often leaves the bathroom door open. A few weeks later, the child told the
grandmother, “Uncle Keith has a big thing.” Then, the child looked down to the floor
and slumped her shoulders. The child said, “He put it in my mouth.” The
grandmother asked the child what appellant did, and the child demonstrated by
putting her finger in and out of her mouth. On the following day, the grandmother
asked the child to tell appellant’s wife what appellant had done. The child conveyed
the same story with the same motion.

      The grandmother testified that the child had never really seen the male private
part at home. The grandmother denied coaching the child about what to say.
Appellant’s wife testified that when the child told appellant’s wife what the child
had told the grandmother, it did not seem like the grandmother was telling the child


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what to say. Both the grandmother and appellant’s wife testified that the child did
not make up big lies.

         The child testified that she knew the difference between a truth and a lie. She
demonstrated this concept in response to the State’s questions about the color of
clothing.

         The child testified that on two separate occasions, appellant put his “big thing”
or his “peepers” in her mouth. She testified that his “big thing” was his “peepers,”
and that his “peepers” was used “to pee.” The child drew a picture of appellant’s
penis at trial and the drawing was admitted as an exhibit. She testified that what she
drew was “attached to his body . . . On his butt.” She testified that he put it in and
out of her mouth. She demonstrated at trial by putting a finger in and out of her
mouth.

         The child testified that the grandmother did not show the child what to draw,
or tell her to lie while testifying, or tell her to say untrue things about appellant. The
child testified that neither the grandmother nor grandfather told her what to say at
trial.

         On cross-examination, the child testified that the grandmother did not tell her
things about appellant. But the child responded to several questions in a contrary
manner:

         Q. Did [the grandmother] say [appellant] was a bad guy? Are you
         sticking your tongue out at him? Did you?
         A. I don’t like Uncle Keith right now.
         Q. Really?
         A. Yeah.
         Q. Is that what [the grandmother] told you?
         A. Yeah.

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      ....
      Q. Did she tell you Keith’s going to get punishment?
      A. Yeah.

The child testified that she practiced drawing the picture of appellant’s penis the day
before trial while at home with the grandmother.

      The child also testified that she had several pretend friends. She testified that
she did not know the difference between pretend and real:

      Q. How can you tell the difference between pretend and real?
      A. (Clucking.) (Witness shrugs shoulders.)
      Q. You know the difference?
      A. (Shakes head negatively.)
      Q. You’re shaking your head no. Is that your answer? No?
      A. Yep.
      Before trial, the child underwent a medical exam and forensic interview at the
Children’s Assessment Center. The examining doctor testified that the child
spontaneously made a statement about what appellant had done, and the disclosure
was clear and consistent. The doctor did not make any notes during the exam that
the child was unable to distinguish between fantasy and reality, or that the doctor
felt that the child had been coached.

      The interviewer testified that nothing during the interview caused her to make
any notes that the child was unable to distinguish between a truth and a lie. The
interviewer also testified that she gave the child some Play-Doh, and the child
spontaneously made a figure. When the interviewer asked what the figure was, the
child responded, “It’s Uncle Keith’s thing.” The interviewer testified that there
would have been no time before the interview for the child’s caregiver to talk to the
child about what to do with the Play-Doh.

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       After appellant was arrested, he gave a statement to a deputy with the Harris
County Sheriff’s Office. Appellant denied the allegations. He also gave a subsequent
statement claiming that the child observed the grandmother performing oral sex on
him.

C.     Analysis

       “In sexual abuse cases, the testimony of the child victim alone is sufficient to
support the conviction.” Tran v. State, 221 S.W.3d 79, 88 (Tex. App.—Houston
[14th Dist.] 2005, pet ref’d) (affirming conviction for aggravated sexual assault of a
child because the child testified to all of the elements). Because we will not second-
guess the jury’s assessment of the credibility and weight of the witnesses’ testimony,
and because we defer to the jury’s resolution of conflicting inferences, appellant’s
assertion that the child’s testimony is not credible plays no part in our review of the
sufficiency of the evidence. See Balderas, 517 S.W.3d at 766.

       As the sole judge of the credibility of witnesses and weight attached to their
testimony, the jury could have disbelieved appellant’s denial of the allegations,
believed that the grandmother did not coach the child, and believed the child’s
testimony that appellant caused his penis to contact her mouth. See Young v. State,
358 S.W.3d 790, 801 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (“The jury,
as the sole judge of the credibility of witnesses, is free to believe or disbelieve all or
part of a witness’s testimony.”); see also Sharp v. State, 707 S.W.2d 611, 614 (Tex.
Crim. App. 1986). Despite the child’s testimony that she could not distinguish
between “pretend and real,” the doctor did not have concerns about the child’s ability
to distinguish between fantasy and reality, and the interviewer did not have concerns
about the child’s ability to distinguish between truth and fiction. The grandmother
and appellant’s wife testified that the child did not make big lies. The jury could
have credited this testimony.

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      Accordingly, the evidence is sufficient for a rational juror to find beyond a
reasonable doubt that appellant intentionally or knowingly caused the mouth of the
child to contact appellant’s sexual organ.

      Appellant’s first issue is overruled.

                          II.    ADMISSION OF EVIDENCE

      In his second issue, appellant contends that the trial court erred by admitting
into evidence “a photograph of a Play-Doh figure.” Specifically, Exhibit 24 is a still
photograph from a video-recorded interview of the child at the Children’s
Assessment Center. The photograph shows the child making an object out of Play-
Doh, though the exact shape and nature of the object is not evident from the
photograph. The interviewer testified that the interviewer gave the child Play-Doh
during the interview to keep the child occupied. The interviewer testified that the
child made the Play-Doh figure spontaneously and “on her own.” While the child
was playing with the Play-Doh, the child said, “Look what I made.” When the
interviewer asked what it was, the child responded, “It’s Uncle Keith’s thing.”

      Appellant contends that the photograph is “nonverbal hearsay” under
Rule 801 of the Texas Rules of Evidence, and no exception to the hearsay rule is
applicable. Appellant does not assign error to the admission of any testimony about
the photograph or about the child’s verbal statements made to the interviewer. The
State contends, among other things, that the photograph alone is not a “statement”
as defined by Rule 801. We agree with the State.

      The admissibility of evidence is within the discretion of the trial court and will
not be overturned absent an abuse of discretion. Moses v. State, 105 S.W.3d 622,
627 (Tex. Crim. App. 2003). If the trial court’s ruling was within the zone of
reasonable disagreement, an appellate court should affirm. Id. Generally, an


                                             7
appellate court will affirm the trial court’s ruling if it is correct under any theory of
law applicable to the case. See State v. Esparza, 413 S.W.3d 81, 88–90 (Tex. Crim.
App. 2013).

      For there to be hearsay, there must be a “statement.” See Tex. R. Evid. 801(c).
A “statement” is defined as “a person’s oral or written verbal expression, or
nonverbal conduct that a person intended as a substitute for verbal expression.” Tex.
R. Evid. 801(a). A photograph itself is not a statement. See Herrera v. State, 367
S.W.3d 762, 773 (Tex. App.—Houston [14th Dist.] 2012, no pet.); Wood v. State,
299 S.W.3d 200, 214–15 (Tex. App.—Austin 2009, pet. ref’d); see also Black v.
State, 358 S.W.3d 823, 831 (Tex. App.—Fort Worth 2012, pet. ref’d). A photograph,
however, may contain statements amounting to hearsay. See Black, 358 S.W.3d at
831 (messages on a cell phone); see also Willover v. State, 70 S.W.3d 841, 847 (Tex.
Crim. App. 2002) (“Inadmissible hearsay testimony does not become admissible
simply because it is contained within an admissible document or transcript.”
(quotation omitted)).

      Appellant contends that the “the photograph of the play-doh object was
intended as a substitute for [the child’s] verbal expression of describing Appellant’s
penis.” Thus, appellant argues that the photograph depicts nonverbal conduct
amounting to a “statement” for purposes of the hearsay rule.

      Nonverbal conduct may be a “statement” for purposes of the hearsay rule if
the conduct “is an assertive substitute for verbal expression.” See Foster v. State,
779 S.W.2d 845, 862 (Tex. Crim. App. 1989). For example, conduct may be a
substitute for verbal expression if “a declarant is asked a specific question and
responds assertively to that question in a non-verbal manner.” Id. Non-assertive
conduct, however, is not a statement. Id. (no hearsay when the peace officer testified



                                           8
about a person making a throwing gesture toward a tank, where a shotgun was later
recovered).

       Exhibit 24 shows the child making an object out of Play-Doh. As noted above,
appellant does not assign error to the admission of any testimony regarding what the
Play-Doh object represents. The child did not make the object in response to a
specific question. She made it spontaneously and on her own. Thus, the child’s
nonverbal conduct that is depicted in the photograph—making the Play-Doh
figure—was not a “substitute for verbal expression.” See id. Compare In re Alba,
540 N.E.2d 1116, 1118 (Ill. App. Ct. 1989) (holding that a child’s drawing was
hearsay because it was “produced in response to a request that she draw a picture
showing where her father puts his ‘favorite part’”), with In re Dependency of B., 709
P.2d 1185, 1192 (Wash. 1985) (holding that the therapist’s testimony describing the
child’s conduct while the child played with an anatomically correct male doll—when
the child, “on her own,” pushed the doll toward the therapist’s face while the child
held the doll’s penis—was nonassertive nonverbal conduct and thus not hearsay).

       The trial court did not act outside the zone of reasonable disagreement by
overruling appellant’s hearsay objection to Exhibit 24 because the trial court
reasonably could have believed that the photograph of the child making a Play-Doh
figure does not contain a “statement.” The trial court did not abuse its discretion.

       Appellant’s second issue is overruled.

                           III.   DENIAL OF THEUS MOTION

       In his third issue, appellant contends that the trial court erred by denying his
motion to testify free from impeachment—a Theus motion.1 Appellant made this

       1
         See Theus v. State, 845 S.W.2d 874, 877 (Tex. Crim. App. 1992); see also Cisneros v.
State, 290 S.W.3d 457, 468 (Tex. App.—Houston [14th Dist.] 2009) (referring to Theus motion),
pet. dism’d, improvidently granted, 353 S.W.3d 871 (Tex. Crim. App. 2011).

                                             9
motion during trial, testified after the trial court denied it, and was impeached with
two prior convictions for forgery that were more than ten years old. See Tex. R. Evid.
609(b). But the trial court declared a mistrial after the jury could not reach a verdict.
During the retrial, appellant did not make a similar motion, nor did he testify. Thus,
the convicting jury never learned of appellant’s prior convictions.

      “To preserve error on a trial court’s ruling allowing the State to impeach a
defendant with prior convictions, the defendant must have actually testified.”
Caballero v. State, 919 S.W.2d 919, 923 (Tex. App.—Houston [14th Dist.] 1996,
pet. ref’d); see also Jackson v. State, 992 S.W.2d 469, 479–80 (Tex. Crim. App.
1999) (holding that the defendant failed to preserve error from the trial court’s denial
of his “request to foreclose cross-examination about extraneous offenses” during
punishment because the defendant did not testify). One reason for this rule is that
the “alleged harm would be speculative because the trial court could change the
previous ruling and prohibit the impeachment, or the prosecutor may decide not to
use the prior conviction.” Caballero, 919 S.W.2d at 923. If the defendant does not
testify, an appellate court would be required to speculate about whether any resulting
error in permitting impeachment would have been harmless. Jackson, 992 S.W.2d
at 479 (citing Luce v. United States, 469 U.S. 38, 41–42 (1984)).

      On appeal, appellant does not argue that he was harmed by the trial court’s
denial of the Theus motion during the first trial. Generally, evidentiary and non-
constitutional error that does not affect substantial rights must be disregarded. Tex.
R. App. P. 44.2(b); see also Tex. R. Evid. 103(a). A substantial right is affected if
the error had a substantial and injurious effect or influence in determining the jury’s
verdict. Gonzalez v. State, 541 S.W.3d 306, 313 (Tex. App.—Houston [14th Dist.]
2017, no pet.). Conversely, an error does not affect a substantial right if we have a
fair assurance that the error did not influence the jury, or had but a slight effect. Id.

                                           10
        Because appellant did not testify during the retrial, he was never actually
impeached with evidence of the prior convictions. See Morgan v. State, 891 S.W.2d
733, 735 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Thus, “the impact any
erroneous impeachment may have had in light of the record as a whole is not
affirmatively demonstrated in the appellate record.” Yanez v. State, 199 S.W.3d 293,
302–03 (Tex. App.—Corpus Christi 2006, pet. ref’d) (no harm from trial court’s
failure to hold a hearing about the admissibility of impeachment evidence under Rule
609).

        Under these circumstances, we cannot conclude that appellant’s substantial
rights were affected. See id. Assuming without deciding that this alleged error was
preserved, we have a fair assurance that the trial court’s ruling during the first trial
did not influence the jury because the jury never heard the evidence that appellant
wanted the trial court to exclude.

        Appellant’s third issue is overruled.

                           IV.    EXCLUSION OF EVIDENCE

        In his fourth issue, appellant contends that the trial court erred by excluding
evidence that the grandmother and her husband evicted appellant’s wife from a
recreational vehicle while charges against appellant were pending. Assuming
without deciding that the trial court erred in doing so, we hold that appellant was not
harmed.

A.      Background

        Appellant’s wife testified that there had been a “chilling” in the relationship
between her and her sister (the child’s grandmother). She testified that she was not
close with her sister anymore because of “the case” and that “[t]his whole thing has
separated us.” She testified that at one point she was living in a recreational vehicle

                                           11
owned by the grandmother and the grandmother’s husband. She testified that she
moved out of the vehicle in late December.2 Appellant sought to cross-examine
appellant’s wife about why she moved out of the vehicle, and the State objected
based on relevance. The trial court sustained the objection.

       Appellant made an offer of proof through questioning appellant’s wife. She
testified during the offer that she began living in the vehicle in September 2016. She
was supposed to pay $200 per month in rent, but she paid only $100 in November.
Also in November, she had a conversation with the grandmother and was told “that
if I supported Keith, that I could get out of the [vehicle] and we would go our separate
ways and call it a day.” Ultimately, the grandmother’s husband told appellant’s wife
to get out of the vehicle by December 31 because she had not paid them anything
for December.

       Appellant argued that the evidence was relevant to show why appellant’s wife
“was put out of her house” and that the grandmother was “trying to draft her on their
side that he’s guilty of this.”3

B.     Legal Principles for Harm Analysis

       Generally, evidence of a witness’s bias or animus toward the defendant is
relevant, regardless of whether the witness has displayed the bias before or after the
date of the charged offense. See Billodeau v. State, 277 S.W.3d 40, 42–43 (Tex.
Crim. App. 2009). The proponent of evidence to show bias must show that the
evidence is relevant by demonstrating that a nexus, or logical connection, exists



       2
        We note that appellant’s first trial, which resulted in a mistrial, occurred in late September
2016, and the second trial occurred in January 2017.
       3
         The State contends that appellant failed to preserve error. We assume without deciding
that appellant preserved error. See Tex. R. App. 47.1.

                                                 12
between the evidence and the witness’s potential motive to testify in favor of the
other party. See Woods v. State, 152 S.W.3d 105, 111 (Tex. Crim. App. 2004).

      Even if the accused meets this burden, however, the accused still must show
that the error affected a substantial right. See Tex. R. App. P. 44.2(b); Tex. R. Evid.
103(a); see also Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim. App. 2007) (“The
erroneous exclusion of evidence offered under the rules of evidence generally
constitutes non-constitutional error and is reviewed under Rule 44.2(b).”). As
mentioned above, error is harmless if we have a fair assurance that the error did not
influence the jury, or had but a slight effect. See Gonzalez, 541 S.W.3d at 313.

      In conducting this analysis, we consider the record as a whole. Morales v.
State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). We consider all of the admitted
evidence, 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. Id. And, we may consider the jury instructions, the State’s and defendant’s
theories of the case, closing arguments, and voir dire if material to the appellant’s
claim. Id.

C.    No Harm

      The jury heard that appellant’s wife had been living in the recreational vehicle
but then ceased living in the vehicle before trial. The only excluded evidence was
one of the potential reasons: the wife’s support for appellant. The excluded evidence
tended to show that the grandmother evicted appellant’s wife because appellant’s
wife supported appellant at trial, despite the allegation of sexual assault.

      Although it may be relevant that the grandmother harbored bias against
appellant and his wife subsequent to the child’s allegation, this fact was already
developed in the record. Appellant’s wife testified that she and the grandmother


                                          13
became separated because of “the case.” Through cross-examination, the
grandmother admitted that she refused to talk to appellant’s investigator before trial.
Through the child’s testimony, trial counsel elicited evidence that the grandmother
said appellant would “get punishment” and that he was in jail. The child testified
that the grandmother told her those things “because Keith’s a bad guy” and he was
“not a good guy anymore.”

      Appellant’s defensive theories focused on (1) the lack of credibility of the
child’s testimony; (2) the lack of forensic evidence; and (3) evidence that the
grandmother coached the child. Through a deputy, the State elicited evidence that
appellant had claimed before trial that the grandmother performed oral sex on
appellant, and the child observed the act. Appellant’s counsel argued to the jury that
the grandmother lied about not having oral sex with appellant, and that other parts
of her testimony were not believable.

      Thus, appellant was able to fully establish that the grandmother harbored a
potential bias against appellant—both before and after the child’s outcry. Cf.
Robison v. State, 461 S.W.3d 194, 200 (Tex. App.—Houston [14th Dist.] 2015, pet.
ref’d) (noting that the exclusion of evidence is harmless if the nature of the evidence
is established through other means). The jury was aware of the facts underlying the
grandmother’s potential bias and could infer the bias without appellant’s wife’s
testimony that she was told she would have to leave the recreational vehicle if she
supported appellant. See Bellaire v. State, 110 S.W.3d 664, 671–72 (Tex. App.—
Houston [14th Dist.] 2003, pet. ref’d) (harmless error from excluding evidence of
the complainant’s settlement demand figure from the defendant’s employer after the
defendant sexually assaulted the complainant; “Although the jury did not know the
exact amount of the settlement demand, they did know it existed and could infer for
themselves any bias or motive the complainant may have had against appellant and

                                          14
could balance that factor against the other evidence presented.”). Although the jury
did not know of the exact reason for appellant’s wife ceasing to live in the
grandmother’s recreational vehicle, the jury did know that the wife ceased living in
the vehicle before trial and the jury was free to consider this evidence in conjunction
with other evidence of the grandmother’s alleged bias. See id. The jury naturally
would have inferred that the grandmother became biased against appellant, at the
very least, after the child claimed that appellant sexually assaulted her.

      After reviewing the entire record, we have a fair assurance that the alleged
error did not influence the jury, or had but a slight effect. See Gonzalez, 541 S.W.3d
at 313. Thus, appellant’s substantial rights were not affected, and we disregard the
alleged error as harmless. See id.

      Appellant’s fourth issue is overruled.

                                 V.    CONCLUSION

      Having overruled each of appellant’s issues, we affirm the trial court’s
judgment.




                                        /s/    Ken Wise
                                               Justice


Panel consists of Chief Justice Frost and Justices Busby and Wise.
Publish — Tex. R. App. P. 47.2(b).




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