                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-09-00093-CR
        ______________________________


      DOUDLEY SCOTT MALOY, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




    On Appeal from the 8th Judicial District Court
              Hopkins County, Texas
             Trial Court No. 0819781




     Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Justice Moseley
                                         MEMORANDUM OPINION

           Doudley Scott Maloy appeals his conviction for aggravated sexual assault of his

grandchild and indecency with the child by sexual contact. Maloy brings four points of error

contending (1) the trial court erred in permitting Martha Dykes, a social worker, to testify

regarding her interview with S.M.B. (the child victim), maintaining that Dykes was not the proper

outcry witness as defined by Article 38.072 of the Texas Code of Criminal Procedure;1 (2) the trial

court erred in admitting the recorded interview of S.M.B. by Dykes; (3) the tacit consent of the trial

court in allowing interference of the court proceedings by the district attorney’s investigator and

the court’s bailiff created an air of sympathy for S.B. (the victim’s mother) and for S.M.B., rising

to the level of a silent comment on the weight of the evidence by the court; and (4) the evidence is

legally and factually insufficient to support conviction. After reviewing Maloy’s points of error,

we affirm his conviction.2

I.         BACKGROUND

           On August 8, 2007, S.M.B.’s parents left her 3 and her siblings in the care of their

grandfather, Maloy, and Maloy’s mother. While S.M.B. was playing a video game in Maloy’s

1
    TEX. CODE CRIM. PROC. ANN. art. 38.072 (Vernon Supp. 2009).
2
 The initial judgment reflects a finding of guilt on the charge of aggravated sexual assault of a child. TEX. PENAL
CODE ANN. § 22.021(a)(2)(b) (Vernon Supp. 2009); the second and third judgments reflect a finding of guilt on two
separate charges of indecency with a child by sexual contact. TEX. PENAL CODE ANN. § 21.11(a)(1) (Vernon Supp.
2009).
3
 S.M.B.’s date of birth is September 27, 1996. She was ten years old at the time of the assault and twelve years old at
the time of trial.


                                                          2
bedroom, Maloy pulled her shorts aside and licked her in the lower private area and then licked her

and touched her in the higher private area.4 After this, Maloy told S.M.B. that she would like

what he just did when she got older.

         Later that evening, S.M.B. told her mother, S.B., that ―Paw-Paw [Maloy] pulled her shorts

and panties to the side and licked her.‖ S.B. knew that S.M.B. was talking about her female

sexual organ from ―the way she talked, because she was kind of shaky and clammy. She was

afraid she would be in trouble.‖ Upon further questioning of her daughter, S.B. learned that

Maloy had told S.M.B. that ―You’ll like it when you’re older.‖                         S.B. went on to relate that

S.M.B. had told her that Maloy then pulled S.M.B.’s shirt up and licked her on the breast and said,

―You’ll also like this.‖ When S.B. questioned Maloy about this occurrence, Maloy denied the

allegation.5

         After having confronted Maloy, an argument erupted among family members. Aaron

Hanna, a Hopkins County Sheriff’s deputy, was dispatched to the home, where he took a statement

from S.M.B. Hanna’s report of the interview indicated that S.M.B. told Hanna that Maloy pulled

her shorts and panties aside and looked at her.

         Dykes, a social worker and forensic interviewer for the Northeast Texas Child Advocacy

4
 S.M.B. called the ―lower private area‖ the genital area, where she uses the bathroom. S.M.B. defined the ―higher
private area‖ as her breast.
5
 During this testimony, S.B. became very emotional, and the district attorney’s investigator, Ron Mayberry, entered
the bar from the gallery to deliver tissues to her. At the same time, the court’s bailiff, John Hipkins, walked across the
courtroom to hand tissues to S.B.


                                                            3
Center, conducted an interview with S.M.B. on August 23, 2007. Dykes was called by the State

to testify about the information she learned upon interviewing S.M.B. 6 While Dykes never

offered in-court testimony regarding what S.M.B. told her of the events of August 8, 2007,7 a

video recording of Dykes’s interview with S.M.B. was admitted into evidence over Maloy’s

objection and was published to the jury. The interview contained detailed information about the

events of the day in question.

         Maloy was tried and convicted by a jury of aggravated sexual assault of a child and was

sentenced to twenty-eight years in the Texas Department of Criminal Justice. Maloy was also

convicted of two counts of indecency with a child by sexual contact, for which he was sentenced to

seven and four years’ imprisonment, respectively. Each of the three sentences runs concurrently.

Maloy was also charged with two other offenses 8 involving S.M.B., of which Maloy was

acquitted.

II.       ANALYSIS

         A.       Dykes’s Testimony Regarding the Interview With S.M.B.


6
 Maloy objected to the admission of outcry testimony regarding the events of August 8, 2007. The trial court did not
rule on the objection; Maloy renewed his objection to Dykes’s testimony with respect to the events of August 8, 2007.
The court did not rule on the objection, but took it under advisement.
7
 Dykes was designated as an outcry witness for two allegations of indecency with a child by contact that was alleged to
have occurred prior to August 8, 2007. Maloy was acquitted of these additional charges.
8
 These had to do with events that occurred prior to August 8, 2007, in which it was alleged that Maloy touched
S.M.B.’s breast.



                                                          4
           Maloy broadly alleges that the trial court erred in allowing Dykes to testify about her

interview with S.M.B. Maloy did not dispute that Dykes was the proper outcry witness regarding

events that occurred prior to August 8, 2007 (to which no objection has ever been made by Maloy).

We, therefore, construe Maloy’s complaint on this issue to be confined to Dykes’s testimony

pertaining to S.M.B.’s statements describing the events of August 8, 2007.

           The first question propounded to Dykes about the events of August 8 was whether S.M.B.

told her about the allegations against Maloy that occurred on that date. No objection was made to

this query; the response was simply, ―Yes, she did.‖ Dykes was then asked whether S.M.B.

discussed those allegations in some detail. Once again, there was no objection to the question and

the response was simply, ―Yes.‖ Later, Dykes was asked (in connection with events that occurred

prior to August 8) if she was able to determine if the touching was playful or for sexual

gratification. In response, Dykes testified that S.M.B. stated that she did not like what Maloy did,

but that ―he had made comments that she would like it when she was older.‖ Upon hearing this

testimony, Maloy objected in relation to the statement that ―she would enjoy it later on.‖9 The trial

court took the objection under advisement, but did not rule on it.

           We review a trial court’s decision to admit or exclude evidence under an abuse of

discretion standard. See Green v. State, 934 S.W.2d 92, 101–02 (Tex. Crim. App. 1996); Brown

v. State, 189 S.W.3d 382, 385 (Tex. App.—Texarkana 2006, pet. ref’d). In cases involving

certain sex crimes against children, Article 38.072 of the Texas Code of Criminal Procedure
9
    This statement was expressly made in connection with the events of August 8, 2007.

                                                           5
provides an exception to the hearsay rule for testimony by ―outcry witnesses‖ when specific

requirements are met. See TEX. CODE CRIM. PROC. ANN. art. 38.072. An outcry witness is the

first person, eighteen years of age or older, other than the defendant, to whom the child victim

made a statement about the offense. TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a)(3).

       Maloy contended at trial and on appeal that Dykes was not a proper outcry witness to the

August 8 events because the child’s mother was the first person meeting the statutory definition of

an outcry witness to whom S.M.B. made a statement about those events. However, except for one

isolated comment, the testimony elicited from Dykes would not be prohibited by the hearsay rule if

given by her as a nonoutcry witness. Further, Maloy did not obtain a ruling on his objection

pertaining to this. In order to preserve error in admitting evidence, a party must make a proper

objection and secure a ruling on that objection.    See TEX. R. APP. P. 33.1; Valle v. State, 109

S.W.3d 500, 509 (Tex. Crim. App. 2003). To the extent such testimony could be characterized as

outcry testimony, any objections to the propriety of this testimony were waived when Maloy failed

to press to the point of obtaining an adverse ruling on his objection relating to the events of

August 8, 2007. We find no abuse of discretion in the admission of the referenced testimony, and

therefore overrule this point of error.

       B. Admission of the Recorded Interview

       Maloy further complains that it was error to admit the video recording of Dykes’s

interview with S.M.B. Again, Maloy asserts that Dykes was not the proper ―outcry witness‖



                                                6
under Article 38.072 of the Texas Code of Criminal Procedure because S.M.B. made specific

allegations of sexual assault to S.B. prior to her interview with Dykes.

            It is undisputed that S.M.B. made a statement about the incident to her mother, S.B., before

she ever spoke with Dykes.10 The State provided notice that S.B. was the proper outcry witness

regarding the events of August 8, 2007, by filing the notice required by Article 38.072 of the Texas

Code of Criminal Procedure. In addition, the State provided notice pursuant to Article 38.072

that Dykes was the proper outcry witness regarding events occurring prior to August 8, 2007. The

State neither contended at trial nor on appeal that the video recording of Dykes’s interview with

S.M.B. was offered as outcry testimony. Instead, the recorded interview was admitted as a prior

consistent statement under Rule 801 of the Texas Rules of Evidence, which provides that a

statement is not hearsay if the declarant testifies at trial, is subject to cross-examination concerning

the statement, and the statement is

            consistent with the declarant’s testimony and is offered to rebut an express or
            implied charge against the declarant of recent fabrication or improper influence or
            motive.

TEX. R. EVID. 801(e)(1)(B).

            The trial court relied on Hammons v. State, 239 S.W.3d 798 (Tex. Crim. App. 2007), in

concluding that the video recording was admissible as a prior consistent statement. The Texas

Court of Criminal Appeals in Hammons explained that:



10
     The outcry statement made to S.B. is outlined in the previous portion of this opinion.

                                                             7
       [A] reviewing court, in assessing whether the cross-examination of a witness
       makes an implied charge of recent fabrication or improper motive, should focus on
       the ―purpose of the impeaching party, the surrounding circumstances, and the
       interpretation put on them by the [trial] court.‖ Courts may also consider clues
       from the voir dire, opening statements, and closing arguments. From the totality
       of the questioning, giving deference to the trial judge’s assessment of tone, tenor,
       and demeanor, could a reasonable trial judge conclude that the cross-examiner is
       mounting a charge of recent fabrication or improper motive? If so, the trial judge
       does not abuse his discretion in admitting a prior consistent statement that was
       made before any such motive to fabricate arose.

Id. at 808–09.

       As with most evidentiary rulings, a trial court’s determination that a prior consistent

statement is admissible because the cross-examination suggested or implied an assertion of recent

fabrication or improper motive is reviewed only for an abuse of discretion. Id. at 804, 806. The

video recording was permitted in evidence after the State assured the court that the testimony of

the child victim would be forthcoming. As a result of the sequence of introduction of evidence,

the trial court was not provided the opportunity to determine whether cross-examination suggested

or implied an assertion of recent fabrication because the video recording was introduced and

published to the jury prior to the time S.M.B. was cross-examined. Defense counsel objected to

this chronology of introduction of evidence as allowing the admission of hearsay, and correctly

contended that ―[I]t is not a prior consistent statement, because the witness hasn’t testified

yet . . . .‖ Hammons explicitly requires a determination by the trial court of whether the

cross-examiner is mounting a charge of recent fabrication or improper motive. Id. at 808–09.

This determination is aided by the trial court’s assessment of the tone, tenor, and demeanor of the


                                                8
witness, as well as the totality of the questioning. Id.

         The recorded interview between Dykes and S.M.B. failed to qualify as a prior consistent

statement because S.M.B. had not yet testified at the time the recorded statement was introduced.

We do not condone the procedure employed here (i.e., the introduction of an alleged prior

consistent statement on the promise of future testimony from the declarant).11 By admitting the

video recording into evidence, the trial court allowed evidence into the record that was in violation

of the Texas Rules of Evidence. The ruling of the trial court is therefore outside the zone of

reasonable disagreement. We, therefore, conclude that the trial court erred by admitting the

evidence.

         Improper admission of hearsay evidence amounts to nonconstitutional error. See Johnson

v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); Dunn v. State, 125 S.W.3d 610, 614 (Tex.

App.—Texarkana 2003, no pet.). Any nonconstitutional error which does not affect substantial

rights must be disregarded. See TEX. R. APP. P. 44.2(b). We may not reverse a defendant’s

conviction for nonconstitutional error if, after examining the record as a whole, we have a fair

assurance that the error did not have a substantial and injurious effect or influence in determining

the jury’s verdict. Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004). In determining

harm, we consider everything in the record, including any testimony or physical evidence admitted

for the jury’s consideration, the nature of the evidence supporting the verdict, and the character of


11
 When asked by the trial court if S.M.B. would testify, the State’s attorney stated, ―I give you my word, she will - -
barring something totally unforeseen, but it’s my intention to bring her forward tomorrow.‖

                                                          9
the alleged error and how it might be considered in connection with other evidence in the case.

Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005). We note that S.M.B. testified later

in the trial; her testimony essentially mirrored the information in the recording.

        In situations where an improperly admitted video recording ―essentially repeated the

testimony‖ of the victim, when the victim also testifies and the video recording is cumulative of

the victim’s properly admitted testimony on the same issue, courts often disregard the error,

reasoning that it could not have affected the appellant’s substantial rights. Dunn, 125 S.W.3d at

615 (citing Jensen v. State, 66 S.W.3d 528, 537 (Tex. App.—Houston [14th Dist.] 2002, pet.

ref’d); Matz v. State, 21 S.W.3d 911, 912 (Tex. App.—Fort Worth 2000, pet. ref’d) (op. on

remand). Such is the case here. We find that, because S.M.B.’s testimony at trial ―essentially

repeated‖ the statements contained in the recorded interview, the erroneous admission of the

recording does not affect Maloy’s substantial rights and amounted to harmless error. See TEX. R.

APP. P. 44.2(b). This point of error is overruled.

       C.    Silent Comment on the Weight of the Evidence?

       While testifying, S.B. became very emotional; an investigator with the district attorney’s

office and the courtroom bailiff both delivered tissues to her, these taking place without leave of

the court. Maloy contends that by permitting this to take place, the trial court made a silent

comment on the weight of the evidence. Maloy objected to this alleged display of sympathy or

perhaps mere assistance:



                                                 10
       Your Honor, I agreed to allow [S.B.] to be helped to the chair by her husband, but
       this bringing officers out of - - in order to hand her tissues and the bailiff handing
       her tissues is way more prejudicial as to what it is, and I’d ask that, you know,
       unless there’s a specific problem, that they keep their seat and not become a part of
       this proceeding. . . . I’d ask the Court to instruct the jury to disregard.

The trial court noted the objection and determined that because S.B. had a box of tissues, there

should be no further movement; the objection was overruled.

       Maloy concedes that the emotions of the witness appeared to be an honest display of pain

and sorrow, and the reactions of the bailiff and the investigator were genuine displays of empathy.

He contends, however, that such displays of emotion created an environment that was hostile to

Maloy as being the one person in the room that caused the pain and sorrow. Consequently, Maloy

maintains that the court’s silence and hence, its tacit approval of such displays of empathy, could

convey to the jury the trial court’s opinion of the testimony offered by S.B. Said another way, the

failure of the court to intervene and admonish the two to refrain from further interfering with the

proceedings and its failure to instruct the jury to disregard the display of sympathy could lend

credibility to the testimony offered by S.B.

       Maloy contends the trial court’s ruling amounts to an impermissible ―silent‖ comment on

the weight of the evidence in violation of Article 38.05 of the Texas Code of Criminal Procedure.

Article 38.05 provides:

       In ruling upon the admissibility of evidence, the judge shall not discuss or comment
       upon the weight of the same or its bearing in the case, but shall simply decide
       whether or not it is admissible; nor shall he, at any stage of the proceeding previous



                                                11
         to the return of the verdict, make any remark calculated to convey to the jury his
         opinion of the case.

TEX. CODE CRIM. PROC. ANN. art. 38.05 (Vernon 1979). A trial court improperly comments on

the weight of the evidence if it makes a statement that implies approval of the State’s argument,

that indicates any disbelief in the defense’s position, or that diminishes the credibility of the

defense’s approach to its case. Clark v. State, 878 S.W.2d 224, 226 (Tex. App.—Dallas 1994, no

pet.).

         Here, no comments were made by the trial court. The court simply overruled an objection

made at the bench outside the hearing of the jury, as it had the discretion to do. Under the facts

presented, we decline to interpret the failure to sustain an objection as a comment on the weight of

the evidence. S.B. was distraught and wept during her testimony. Often, the nature of the matter

being tried is filled with sadness and pain and it would not be unusual or unexpected for a witness

in like circumstances to weep while testifying. Maloy complains that the offer of tissues to the

weeping witness created an environment that was hostile to Maloy as being the one person in the

room that caused the pain and sorrow.12 Such a conclusion does not withstand logic and reason.

If any such environment existed, that environment was not created by the mere offer of tissues.

The fact that a witness is unable to maintain her composure while relating painful testimony is part

and parcel of the nature of a trial involving emotional circumstances. The jury is permitted to


12
  As something of an observation, one must wonder if it would evoke a more emotional response on the part of the jury
to have had people bringing the woman tissues to blot her tears or whether it would have been more heart rending for
the jury to see the tears continue to stream down her cheeks unabated.

                                                         12
judge the credibility of the witness, and will do so whether or not she weeps or is offered tissue.

The ruling of the trial court was within the bounds of reasonable disagreement. We overrule this

point of error.




                                                13
       D. The Evidence Is Legally and Factually Sufficient to Support Conviction

       In his final point of error, Maloy contends the evidence is legally and factually insufficient

to support his conviction of aggravated sexual assault and two counts of indecency with a child by

contact.

       We review the legal and factual sufficiency of the evidence supporting a conviction under

well-established standards. In conducting a legal sufficiency review, we consider the evidence in

the light most favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Laster v. State, 275 S.W.3d

512, 517 (Tex. Crim. App. 2009). We must give deference to ―the responsibility of the trier of

fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.‖ Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). We are not required to

determine whether we believe that the evidence at trial established guilt beyond a reasonable

doubt; rather, when faced with conflicting evidence, we must presume that the trier of fact resolved

any such conflict in favor of the prosecution, and we must defer to that resolution. State v. Turro,

867 S.W.2d 43, 47 (Tex. Crim. App. 1993) (en banc). In conducting a factual sufficiency review,

we consider the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414–15 (Tex. Crim.

App. 2006).

       We may find evidence factually insufficient in two ways: (1) the evidence supporting the



                                                14
conviction is ―too weak‖ to support the fact-finder’s verdict, or (2) considering conflicting

evidence, the fact-finder’s verdict is against the great weight and preponderance of the evidence.

Laster, 275 S.W.3d at 518. In so doing, we may find the evidence insufficient when necessary to

prevent manifest injustice. Id.           Although we give less deference to the verdict in a factual

sufficiency review, we will not override the verdict simply because we disagree with it. Id. Both

legal and factual sufficiency are measured by the elements of the offense as defined by a

hypothetically-correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997);

see also Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim. App. 2008).

         Maloy attacks the evidence as being legally and factually insufficient to support his

conviction of aggravated sexual assault, as alleged in count one of the indictment. Count one

alleges that Maloy caused the female sexual organ of S.M.B., a child who was younger than

fourteen and not the spouse of the defendant, to contact the mouth of the defendant. 13 S.B.

testified that Maloy pulled S.M.B.’s shorts and panties to the side and licked her. S.B. further

testified that she knew S.M.B. was referring to her female sexual organ because of the ―way she

talked, because she was kind of shaky and clammy. She was afraid she would be in trouble.‖

         We do not consider the testimony of S.B. in a vacuum, aside from other evidence presented

at trial. In this regard, S.M.B. testified that ―He licked me down in the lower private area and then


13
 A person commits the offense of aggravated sexual assault if the person intentionally or knowingly causes the sexual
organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor. TEX.
PENAL CODE ANN. § 22.021(a)(1)(B)(iii) (Vernon Supp. 2009).


                                                         15
licked me in the higher private area.‖ Maloy told S.M.B. she was going to like it when she got

older. When asked if ―private area‖ means the genital area, S.M.B. unequivocally stated that was

the area to which she made reference. We find this evidence to be both legally and factually

sufficient to support Maloy’s conviction of aggravated sexual assault of a child.

       Counts two and three of the indictment allege that Maloy, with the intent to arouse or

gratify the sexual desire of the defendant, intentionally or knowingly engaged in sexual contact

with S.M.B. by (1) touching the breast of S.M.B. with the defendant’s mouth; and (2) touching the

breast of S.M.B. with the defendant’s hand. While Maloy states in his brief that he challenges the

factual sufficiency of the evidence to support the elements of the offense of indecency with a child,

he fails to explain the basis of this challenge and does not provide authority in support of this

challenge.

       Rule 38.1(i) of the Texas Rules of Appellate Procedure requires that the brief ―must

contain a clear and concise argument for the contentions made, with appropriate citations to

authorities and to the record.‖ TEX. R. APP. P. 38.1(i). Because Maloy has failed to present

argument for his contention that the evidence is factually insufficient with respect to the

convictions based upon indecency with a child, this point of error has not been adequately briefed.

See id.; Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996) (―It is incumbent upon

counsel to cite specific legal authority and provide legal argument based upon that authority.‖).

We overrule Maloy’s legal and factual sufficiency points of error.



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17
      We affirm the judgment of the trial court.




                                                   Bailey C. Moseley
                                                   Justice

Date Submitted:      June 30, 2010
Date Decided:        July 9, 2010

Do Not Publish




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