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


                  No. 06-19-00097-CR



           ISRAEL BRICE DEERE, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 6th District Court
                Lamar County, Texas
                Trial Court No. 27881




      Before Morriss, C.J., Burgess and Stevens, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                   MEMORANDUM OPINION
        A Lamar County jury convicted Israel Brice Deere of indecency with a child, A.H., by

sexual contact and sentenced him to twenty years’ imprisonment. See TEX. PENAL CODE ANN.

§ 21.11. On appeal, Deere argues that the evidence is legally insufficient to support his conviction

and that the trial court erred by reading the transcript of witness testimony in response to a jury

note that did not adequately specify the disagreement about the testimony, by admitting hearsay,

and by creating a false impression that Deere was charged with an additional offense. 1

        We affirm the judgment of the trial court because (1) legally sufficient evidence supports

Deere’s conviction, (2) the trial court did not abuse its discretion in concluding there was jury

disagreement, (3) Deere was unharmed by admission of hearsay, and (4) Deere’s last point of error

is unsupported by the record and unpreserved.

(1)     Legally Sufficient Evidence Supports Deere’s Conviction

        Deere argues that the evidence is legally insufficient to support the jury’s verdict of guilt.

We disagree.

        In evaluating legal sufficiency of the evidence, we review all the evidence in the light most

favorable to the trial court’s judgment to determine whether any rational jury could have found the

essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893,

912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979));

Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). We examine



1
In companion cause numbered 06-19-00098-CR, Deere also appeals his convictions for aggravated sexual assault of
H.W., a child, and indecency with A.S., a child, by sexual contact.

                                                      2
legal sufficiency under the direction of the Brooks opinion, while giving deference to the

responsibility of the jury “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, 443 U.S. at 318–19); Clayton v. State, 235 S.W.3d 772,

778 (Tex. Crim. App. 2007).

       Legal sufficiency of the evidence is 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).

The “hypothetically correct” jury charge is “one that accurately sets out the law, is authorized by

the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict

the State’s theories of liability, and adequately describes the particular offense for which the

defendant was tried.” Id.

       Here, the State alleged that Deere, with the intent to arouse or gratify his sexual desire,

engaged in sexual contact with A.H., a child younger than seventeen, by touching her female

sexual organ with his hand. The term “sexual contact” means “any touching by a person, including

touching through clothing, of the anus, breast, or any part of the genitals of a child” if committed

with the intent to arouse or gratify the sexual desire of any person. TEX. PENAL CODE ANN.

§ 21.11(c)(1). On appeal, Deere questions only whether the evidence was legally sufficient to

show that he “actually made physical contact with A.H.”

       At trial, A.H. testified that Deere came into her bedroom at night and “tried to put [his

hand] on [her] pull-up.” When asked if he “actually” placed his hand inside of her pull-up, A.H.




                                                 3
said, “He kept trying and trying and then I kept turning over and then he did it.” The State then

elicited the following:

               Q.     Okay. Do you remember telling the lady at the big white house that
               he kind of did touch it the first time and that’s why you scooted over?

               A.         Yes, ma’am.

               Q.         What did he kind of touch it with, what was that?

               A.         His hand.

               Q.         Okay. What part on you?

               A.         Where you pee.

                          ....

               Q.         And how did it make you feel when he did that?

               A.         I was scared . . . and I didn’t know what he was trying to do.

                          ....

               Q.         Did you feel his fingers—his hand on you where you pee?

               A.         Sort of.

During cross-examination, when Deere asked, “You said he tried. Did he actually touch you where

you pee,” A.H. responded, “The first time. Then I turned over and he kept trying and trying until

he just stopped.” A.H. clarified that Deere’s fingers were in her pull-up.

       After A.H. reported the incident to her mother, she was examined by Kim Basinger, a

sexual assault nurse examiner (SANE). Basinger testified that A.H. said, “Deere touch[ed] where




                                                    4
I pee. I was uncomfortable. I turned over and he tried to do it again, touch me where I pee.” 2

Chris Bean, a detective with the Paris Police Department, interviewed Deere about A.H.’s

allegation. Bean testified, and the recording of Deere’s interview admitted into evidence showed,

that Deere admitted that he was lying with A.H. on her bed and his hand touched her genital area

on top of her clothing. According to Bean, Deere said he was sleepy because he had taken Xanax

and “didn’t quite remember what had happened.” Yet, Deere admitted on the recording that he

realized his hand was on A.H.’s genital area and knew it was not supposed to be there.

        “The testimony of a child victim alone is sufficient to support a conviction for aggravated

sexual assault or indecency with a child.” Scott v. State, 202 S.W.3d 405, 408 (Tex. App.—

Texarkana 2006, pet. ref’d). Here, testimony from A.H. and the SANE showed that Deere placed

his fingers in A.H.’s pull-up and touched her “where [she] pee[d]” “[t]he first time.” In addition,

Bean testified, and Deere’s recorded interview confirmed, that Deere touched A.H.’s genital area

outside her clothing. 3 Viewing the evidence in the light most favorable to the jury’s verdict, we

conclude the evidence is legally sufficient to support the finding that Deere touched A.H.’s female

sexual organ with his hand. Accordingly, we overrule this point of error.

(2)     The Trial Court Did Not Abuse Its Discretion in Concluding There Was Jury
        Disagreement

        In the second count of companion cause numbered 06-19-00098-CR, Deere was charged

with “touching the female organ of [A.S.].” Deere argues that the trial court erred in concluding


2
 The jury was instructed on the lesser-included offense of attempted indecency with a child but found Deere guilty of
the primary offense.
3
 Deere does not contest the evidence, including testimony from prior victims, showing that the act was done with
intent to gratify his sexual desire.
                                                         5
there was disagreement among the jury about A.S.’s testimony regarding the touching. As a result

of its finding, the trial court read portions of A.S.’s testimony under Article 36.28 of the Texas

Code of Criminal Procedure:

       In the trial of a criminal case in a court of record, if the jury disagrees as to the
       statement of any witness they may, on applying to the court, have read to them from
       the court reporter’s notes that part of such witness testimony or the particular point
       in dispute, and no other.

TEX. CODE CRIM. PROC. ANN. art. 36.28. “This statute seeks to balance our concern that the trial

court not comment on the evidence with the need to provide the jury with the means to resolve any

factual disputes it may have.” Howell v. State, 175 S.W.3d 786, 790 (Tex. Crim. App. 2005).

       “A simple request for testimony does not, by itself, reflect disagreement, implicit or

express, and is not a proper request under Art. 36.28.” Id. “Instead, the request must reflect that

the jurors disagree about a specified part of testimony.” Id. “The trial judge’s conclusion as to

whether there is a factual dispute between the jurors is reviewed for an abuse of discretion.” Id.

“A trial judge abuses his discretion when his decision is so clearly wrong as to lie outside the zone

within which reasonable persons might disagree.” Id.

       During deliberation, the jury sent a note requesting to see the transcript of A.S.’s testimony.

Without objection, the court responded, “As instructed in . . . the charge you must identify a

particular dispute regarding testimony. Once the testimony is located you will be brought into

court where the testimony will be read back to you.” The jury’s second note stated, “We are not

clear on the details involving the incident involving [A.S.].” Deere and the State agreed to the

following response from the trial court: “The reference to, quote, unquote, details is not specific

enough for the Court to identify a particular portion of testimony to read back to you. It is
                                                 6
necessary that you specify which particular part of the witness’ testimony is actually in dispute.”

The jury’s third note read, “The jury would like to know from [A.S.]’s testimony, how the

Defendant allegedly touched her.” After the trial court proposed the portions of A.S.’s testimony

it planned to read to the jury in response to the note, Deere objected on the ground that he did not

believe the jury had “identified a dispute in the testimony specifically enough.” The trial court

responded, “[T]here’s a dispute as to how he allegedly touched her.”

       When read in context with the first two jury notes, we conclude that the trial court did not

abuse its discretion in finding that jury disagreement under Article 36.28 justified re-reading the

portion of A.S.’s testimony specifying how Deere touched her. After the trial court instructed the

jury that it had to identify a particular dispute about the testimony, the jury responded by indicating

confusion about the details of the incident between A.S. and Deere. In response to the trial court’s

instruction that it had to specify which part of A.S.’s testimony was disputed, the jury revealed the

dispute was about “how the Defendant allegedly touched her.” Because the trial court’s conclusion

that there was jury disagreement was not so clearly wrong as to lie outside the zone of reasonable

disagreement, we overrule this point of error.

(3)    Deere Was Unharmed by the Admission of Hearsay

       Deere objected to the admission of a SANE report on the ground that it contained hearsay

statements from the child victim. The trial court concluded that the statements were admissible




                                                  7
because they were statements for purposes of medical diagnosis or treatment under Rule 803(4) of

the Texas Rules of Evidence. Deere argues this ruling was erroneous. 4

         Hearsay is “a statement that . . . the declarant does not make while testifying at the current

trial or hearing” that “a party offers in evidence to prove the truth of the matter asserted in the

statement.” TEX. R. EVID. 801(d). It is undisputed that the SANE report included hearsay, but the

parties disagree as to whether it was admissible. Under Rule 803(4), hearsay is admissible if it is

“[a] statement that: (A) is made for—and is reasonably pertinent to—medical diagnosis or

treatment; and (B) describes medical history; past or present symptoms or sensations; their

inception; or their general cause.” TEX. R. EVID. 803(4).

         “A proponent of a statement made for the purpose of medical diagnosis or treatment has

the burden to show that the ‘declarant was aware that the statements were made for that purpose

and that “proper diagnosis or treatment depends on the veracity of such statements.”’” Fahrni v.

State, 473 S.W.3d 486, 497 (Tex. App.—Texarkana 2015, pet. ref’d) (quoting Taylor v. State, 268

S.W.3d 571, 589 (Tex. Crim. App. 2008) (quoting Jones v. State, 92 S.W.3d 619, 623 (Tex. App.—

Austin 2002, no pet.))). “In addition, the proponent must show that the particular statement is

‘pertinent to . . . diagnosis or treatment.’” Id. (quoting TEX. R. EVID. 803(4)(A)). Here, Deere

questions only whether the statements were pertinent to diagnosis or treatment. In particular, he

argues the statements, “I ran to the living room laid on the couch,” “I was crying until I went to




4
 “A trial judge’s decision on the admissibility of evidence is reviewed under an abuse of discretion standard and will
not be reversed if it is within the zone of reasonable disagreement.” Franklin v. State, 459 S.W.3d 670, 675 (Tex.
App.—Texarkana 2015, pet. ref’d) (quoting Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011)).
                                                          8
sleep,” and “I was afraid of what he would do to me if I told” failed to qualify under Rule

803(4)(A).

       Yet, these same statements were admitted without objection during the SANE’s testimony.

It is well settled that “a party must object each time the inadmissible evidence is offered or obtain

a running objection. An error [if any] in the admission of evidence is cured where the same

evidence comes in elsewhere without objection.” Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim.

App. 2004) (quoting Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)); see Leday v.

State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). Because the substance of the testimony Deere

argues should have been excluded was admitted without objection elsewhere, “no reversible error

is presented.” Lane, 151 S.W.3d at 193. We overrule this point of error.

(4)    Deere’s Last Point of Error Is Unsupported by the Record and Unpreserved

       Deere consolidated the offense in this case with two other offenses charged in the State’s

indictment in cause number 06-19-00098-CR. The record shows that Deere was arraigned in front

of the jury and entered pleas of not guilty to each of the three counts consolidated for trial.

According to Deere, the trial court re-read one of the counts and allegedly created a false

impression that Deere was charged with an additional offense.

       It is the “appellant’s burden to bring forward a record on appeal sufficient to show that the

trial court erred.” Amador v. State, 221 S.W.3d 666, 675 (Tex. Crim. App. 2007); see TEX. R.

APP. P. 34.6; Rowell v. State, 66 S.W.3d 279, 282–83 (Tex. Crim. App. 2001). The reporter’s

record filed with this Court shows that the trial court correctly arraigned Deere on the three counts




                                                 9
consolidated for trial and did not re-read any of those counts. Accordingly, Deere’s point of error

is not supported by the record.

          In any event, Deere admits that he did not object to any alleged re-reading of the indictment.

To preserve a complaint for our review, a party must first present to the trial court a timely request,

objection, or motion stating the specific grounds for the desired ruling if not apparent from the

context. TEX. R. APP. P. 33.1(a)(1). Further, the trial court must have ruled on the request,

objection, or motion, either expressly or implicitly, or the complaining party must have objected

to the trial court’s refusal to rule. TEX. R. APP. P. 33.1(a)(2). 5 Thus, even assuming the trial court

re-read one of the counts of the indictment, Deere failed to preserve this point of error for our

review.

          We overrule this point of error because it is unsupported by the record and unpreserved.

          We affirm the trial court’s judgment.




                                                       Josh R. Morriss, III
                                                       Chief Justice

Date Submitted:            November 18, 2019
Date Decided:              November 27, 2019

Do Not Publish


5
 We reject Deere’s invitation to apply the fundamental error doctrine to excuse his failure to preserve the alleged error
during the arraignment. “Fundamental errors are trial errors which implicate non-forfeitable rights.” Morrison v.
State, 575 S.W.3d 1, 22 (Tex. App.—Texarkana 2019, no pet.). “The purpose of arraignment is [simply] to determine
the identity and the plea of the person charged.” Richardson v. State, 508 S.W.2d 380, 381 (Tex. Crim. App. 1974).
“Because arraignment is not a part of trial by jury, it may be waived.” Id.; see Wood v. State, 515 S.W.2d 300, 303
(Tex. Crim. App. 1974); Linton v. State, 15 S.W.3d 615, 620 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).
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