                        NUMBERS 13-13-00639-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


EDWARD LEE JAYCOX,                                                       Appellant,

                                          v.

THE STATE OF TEXAS,                                                      Appellee.


                   On appeal from the 24th District Court
                        of Calhoun County, Texas.


                         MEMORANDUM OPINION

            Before Justices Benavides, Perkes, and Longoria
                Memorandum Opinion by Justice Perkes
      Appellant Edward Lee Jaycox was indicted for the offense of aggravated sexual

assault, a first degree felony, with a habitual-felony offender enhancement. See TEX.

PENAL CODE ANN. §§ 12.42(d), 22.021(e) (West, Westlaw through Ch. 46 2015 R.S.). A

jury found appellant guilty and assessed punishment at life imprisonment. By three

issues, appellant argues the trial court erred by overruling his objections to: (1) the
prosecutor’s use of the word “victim”; (2) statements made by the complainant to a law

enforcement officer; and (3) a nurse’s testimony concerning whether the complainant’s

injuries were consistent with a sexual assault. We affirm.

                                            I. BACKGROUND

        The complainant M.S.1 testified that she was walking home from work at 12:30 in

the morning when appellant slowed his vehicle and asked if she wanted a ride home.

Since appellant had given her a ride on prior occasions, M.S. accepted the offer.

Appellant stopped to get gas, which M.S. agreed to purchase for him. Appellant then

drove to a trailer park and drank some beer with friends for about an hour. During this

time, M.S. told appellant multiple times that she needed to go home because she was

scheduled to work the morning shift. Appellant left with M.S. to pick up his sister and

another individual before returning to the trailer park.

        Appellant then told M.S. he needed to go to his house, located in a separate trailer

park, to “pick up something.” They arrived at appellant’s trailer around 3:00 a.m., and

appellant told M.S. to come inside because “it’s going to take a little while.” As M.S. was

sitting on the bed, appellant attempted to kiss her. She kicked him and tried to get away.

Appellant then pushed her down and started choking her. Appellant removed M.S.’s

clothes and threatened to kill her if she continued to fight him. Appellant then put his

penis in M.S.’s mouth and his fingers in her vagina. At this point, M.S. was crying and

appellant put his hand over her mouth. Appellant then inserted his penis in her vagina.

M.S. stated that this “went on for hours it seemed.” Afterward, appellant told M.S. to give


        1 Although the complainant's identity was not concealed at trial, we use only her initials here to
protect her identity.
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him “hickies” on his neck to make it appear consensual, and M.S. complied. M.S. left

her sports bra behind and scratched him on his face “to prove what had happened.” M.S.

received bruises and scratches on her neck, arms, legs, and backside as a result of the

sexual assault.

       Appellant drove M.S. back to work that morning and she immediately informed a

co-worker that appellant had sexually assaulted her. M.S. called the police to report the

assault. A sexual assault nurse examiner (“SANE” nurse) examined M.S. The SANE

nurse testified at trial regarding M.S.’s injuries, which included bruising, scratches, and

injuries to her labia and hymen.

       Appellant spoke to an investigating officer and admitted to having intercourse with

M.S., but explained “she [was] old enough” and “the girl gave in.” Photographs showing

scratches and bruises on appellant were admitted at trial.

       The jury found appellant guilty of aggravated sexual assault and sentenced him to

life in prison. This appeal followed.

                                II. USE OF THE WORD “VICTIM”

       By his first issue, appellant argues “the trial court erred by allowing the burden of

proof to switch to the defense.” Specifically, appellant maintains that the trial court erred

in overruling appellant’s objection to the State’s use of the word “victim” to describe M.S.

A. Standard of Review

       We review a trial court’s evidentiary rulings under an abuse of discretion standard.

Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). We will not disturb the

ruling if it “was within the zone of reasonable disagreement and was correct under any


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theory of law applicable to the case.” Winegarner v. State, 235 S.W.3d 787, 790 (Tex.

Crim. App. 2007); see also Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002)

(“[T]he appellate court must uphold the trial court's ruling if it is reasonably supported by

the record and is correct under any theory of law applicable to the case.”).

B. Discussion

       Detective Rangnow with the Port Lavaca Police Department investigated M.S.’s

sexual assault allegation.     During the State’s direct examination, he was asked the

following: “you got a call then from the police department to respond to the department

because there was a victim there who was . . .” Appellant’s counsel objected “to the use

of the word victim,” arguing that “[i]t shifts the burden of proof at this phase of the trial to

my client to disprove guilt.” The trial court overruled the objection and granted a running

objection. The prosecutor continued, “A victim there who reported that she had been

sexually assaulted; is that correct?” Detective Rangnow responded “That is correct.”

The prosecutor referred to M.S. as the victim nine times when questioning witnesses

during the trial.

       A trial court’s reference to a complainant as a victim in the jury charge has been

held to be an improper comment on the weight of the evidence. See Talkington v. State,

682 S.W.2d 674, 674–75 (Tex. App.—Eastland 1984, pet. ref’d); Veteto v. State, 8

S.W.3d 805, 816–17 (Tex. App.—Waco 2000, pet. ref’d). However, a prosecutor’s use

of the word victim, while it assumes a crime has been committed, “would not surprise a

reasonable juror, nor would the prosecutor’s use of the word . . . generally be understood




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as anything other than the contention of the prosecution.”         Weatherly v. State, 283

S.W.3d 481, 486 (Tex. App.—Beaumont 2009, pet. ref’d).

       Here, the trial court did not refer to M.S. as a victim, and the jury charge properly

identified the complainant by her name and not as the victim. Furthermore, the jury was

correctly instructed that the State’s burden of proof was beyond a reasonable doubt.

Appellant has not identified any authority where the prosecutor’s use of the term victim

was held to be improper, and we have found none. To the contrary, Texas courts have

held that a prosecutor or witness’s use of the word victim does not constitute reversible

error. See Gonzalez v. State, No. 13-13-00427-CR, 2014 WL 4049800, at *16 (Tex.

App.—Corpus Christi Aug. 14, 2014, pet. ref’d) (rejecting defendant’s argument that trial

counsel was deficient for not filing a motion in limine to prevent the State and its witnesses

from referring to complainants as “victim”); Cueva v. State, 339 S.W.3d 839, 864 (Tex.

App.—Corpus Christi 2011, pet. ref’d) (concluding term “victim” is relatively mild,

especially when considering stronger terms that have not amounted to reversible errors—

i.e. “slaughter,” “sex slave,” “butcher,” and “this killer”); Weatherly, 283 S.W.3d at 486

(holding counsel was not ineffective for failing to object to use of the word “victim” by

prosecutor and witnesses); see also Cano v. State, No. 14-06-00377-CR, 2007 WL

2872418, at *8 (Tex. App.—Houston [14th Dist.] Oct. 4, 2007, pet. ref’d) (mem. op., not

designated for publication) (failure to object to use of term “victim” did not constitute

ineffective assistance of counsel); Johnson v. State, No. 14–04–00406–CR, 2005 WL

3065872, at *4 (Tex. App.—Houston [14th Dist.] Nov. 15, 2005, pet. ref’d) (mem. op., not




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designated for publication) (holding prosecutor’s use of term “victim” to refer to

complainant during voir dire did not constitute reversible error).

       We conclude the trial court did not abuse it’s discretion in overruling appellant’s

objection to the State’s use of the word “victim”.      The jury was properly instructed

regarding the State’s burden of proof, and the trial court’s ruling did not improperly shift

the burden of proof to appellant. We overrule appellant’s first point of error.

                                   III. HEARSAY TESTIMONY

       By his second point, appellant argues “the trial court erred by allowing [Detective]

Rangnow to testify to everything the complainant told him regarding all the alleged facts

of the alleged sexual assault.” Appellant maintains that the testimony was hearsay, and

that the officer was not a proper “outcry” witness under Texas Code of Criminal Procedure

article 38.072. See TEX. CODE CRIM. PROC. ANN. art. 38.072 (West, Westlaw through Ch.

46 2015 R.S.).    The State concedes the officer’s testimony constituted inadmissible

hearsay, that the outcry statute did not apply, and that the testimony should not have

been admitted into evidence. The State, however, argues that there was no harm

because the testimony was cumulative of other, properly admitted evidence, including

M.S.’s own testimony and statements made by M.S. to the SANE nurse.

A. Article 38.072

       Hearsay is inadmissible unless it falls within a hearsay exception identified by the

Rules of Evidence or is allowed by other rules prescribed by statute. Sanchez v. State,

354 S.W.3d 476, 484 (Tex. Crim. App. 2011). When a defendant is charged with certain

offenses against a child under the age of 14 or a disabled individual, article 38.072 allows


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into evidence the complainant’s out-of-court statement so long as that statement is a

description of the offense and is offered into evidence by the first adult that the

complainant told of the offense. TEX. CODE CRIM. PROC. ANN. art. 38.072. The victim’s

out-of-court statement is commonly known as an “outcry,” and an adult who testifies about

the outcry is commonly known as an “outcry witness.” Sanchez, 354 S.W.3d at 484.

        M.S. was nineteen when she made her outcry to Detective Rangnow, and the

record does not indicate that she was disabled as contemplated by article 38.072.

Therefore, her outcry statements were not admissible under article 38.072. The State

concedes Detective Rangnow is not a proper outcry witness and has not identified any

other applicable hearsay exceptions. We conclude the trial court abused its discretion

in permitting Detective Rangnow to testify concerning M.S.’s statements.2

B. Harm Analysis

        The erroneous admission of hearsay evidence is non-constitutional error that is

subject to a harm analysis under rule 44.2(b) of the Texas Rules of Appellate Procedure.

See TEX. R. APP. P. 44.2(b); Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.—Houston

[1st Dist.] 2002, pet. ref'd). We disregard non-constitutional error unless it affects the

substantial rights of the defendant.             TEX. R. APP. P. 44.2(b).           “A substantial right is



        2  Appellant argues in one sentence that “he was deprived of his full rights to the protection of the
Confrontation Clause.” However, appellant’s failure to present argument or authorities in support of this
assertion results in waiver of the issue. See TEX. R. APP. P. 38.1(h); State v. Gonzales, 855 S.W.2d 692,
697 (Tex. Crim. App. 1993); Delapaz v. State, 228 S.W.3d 183, 197 n.20 (Tex. App.—Dallas 2007, pet.
ref'd). Furthermore, the declarant, M.S., testified at trial and was subject to cross examination. The
Confrontation Clause is not offended if the declarant of a testimonial statement is available and later testifies
at trial. Crawford v. Washington, 541 U.S. 36, 59 (2004); see also Zuniga v. State, No. 08–08–00314–CR,
2011 WL 1157555, at *5 (Tex. App.—El Paso Mar. 30, 2011, no pet.) (mem. op., not designation for
publication); Marzek v. State, No. 06–10–00087–CR, 2011 WL 238347, at *2 (Tex. App.—Texarkana Jan.
25, 2011, no pet.) (mem. op., not designated for publication).
                                                       7
affected when the error had a substantial and injurious effect or influence in determining

the jury's verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). In

making this determination, we review the record as a whole, including any testimony or

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

supporting the verdict, and the character of the alleged error and how it might be

considered in connection with other evidence in the case. 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. Id. at 355–56.

       Detective Rangnow testified regarding M.S.’s statement concerning the alleged

sexual assault. M.S. later testified at length, and in greater detail, on the same subject

matter. The SANE nurse also testified, without objection, as to M.S.’s statements made

during the nurse’s examination. The erroneous admission of evidence will not result in

reversal when other such evidence is received without objection, either before or after the

complained-of ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); see

TEX. R. APP. P. 44.2. This rule applies equally to the improper admission of a victim’s

outcry statement. See Zarco v. State, 210 S.W.3d 816, 833 (Tex. App.—Houston [14th

Dist.] 2006, no pet.) (holding erroneous admission of officer's testimony regarding child's

outcry of sexual abuse was harmless in part because child “testified in detail about the

abuse” and “detailed the same testimony [the officer] gave regarding the abuse” without

objection); Duncan, 95 S.W.3d at 672 (holding improper admission of outcry testimony




                                            8
was harmless error because similar testimony was admitted through complainant,

pediatrician, and medical records).

       M.S.’s outcry statement to Detective Rangnow did not provide any additional facts

that were not otherwise established by the testimony of M.S. and the SANE nurse. After

reviewing the record for harm, we conclude that the admission of the hearsay testimony

constituted harmless error. Appellant’s second issue is overruled.

                                      IV. EXPERT TESTIMONY

       By his third issue, appellant argues “the trial court erred by allowing the SANE

nurse to testify to whether [M.S.] appeared to be somebody who had consented” to the

sexual assault. Specifically, appellant maintains the SANE nurse was not sufficiently

qualified to give an expert opinion on this issue.

A. Pertinent Facts

       Jennifer Mumphord, a SANE nurse, testified in detail about her observations of

M.S.’s injuries. Her report of the examination was admitted early in her testimony and

she read the complainant’s statement to her to the jury. Mumphord detailed the following

injuries: bruising to the arm indicative of pressure marks from fingers; bruising to the

legs and knees; a red mark underneath her breasts, and bruising and scratches on her

backside. Mumphord testified that M.S. was too sore for her to insert a speculum to

examine her cervix. Using a diagram of female genitalia, the nurse told the jury she

observed extreme swelling to the clitoral hood, redness to her labia, and missing tissue

from M.S.’s hymen. Following this testimony, the prosecutor asked Mumphord, “from

your observations, examination of [M.S.], does this appear to be somebody who had


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consented to have sexual assault?” Appellant's counsel objected, stating “I don’t believe

she’s qualified to answer that based on the foundation laid at this time.” The trial court

overruled appellant's objection, and Mumphord answered, “Given the history that she

gave me and given the findings it is consistent with sexual assault.”

B. Standard of Review and Applicable Law

       We review a trial court's ruling on the admissibility of expert testimony for an abuse

of discretion. Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009); Weatherred

v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). As with other types of evidentiary

rulings, we will uphold the trial court's decision unless it lies outside the zone of

reasonable disagreement.       Layton, 280 S.W.3d at 240.        Such rulings will rarely be

disturbed by an appellate court. Vela v. State, 209 S.W.3d 128, 136 (Tex. Crim. App.

2006); Rodgers v. State, 205 S.W.3d 525, 528–29 n. 9 (Tex. Crim. App. 2006). Before

reversing the trial court’s decision, we must find the trial court’s ruling was so clearly

wrong as to lie outside the realm within which reasonable people might disagree. Taylor

v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008); Green v. State, 191 S.W.3d 888,

895 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d). Absent a clear abuse of that

discretion, the trial court's decision to admit or exclude expert testimony will not be

disturbed. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000).

       Before admitting expert testimony under Rule 702 of the Texas Rules of Evidence,

the trial court should determine that the expert is qualified, the opinion is reliable, and the

evidence is relevant. See TEX. R. EVID. 702; Vela, 209 S.W.3d at 131. These three

requirements—qualification, reliability, and relevance—raise distinct questions and


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issues. Shaw v. State, 329 S.W.3d 645, 655 (Tex. App.—Houston [14th Dist.] 2010, pet.

ref'd); see Vela, 209 S.W.3d at 131.

       Rule 702 allows a witness qualified by knowledge, skill, experience, training, or

education to testify on scientific, technical, or other specialized subjects if the testimony

would assist the trier of fact in understanding or determining a fact issue. TEX. R. EVID.

702. A person’s specialized education, practical experience, study of technical works,

or some combination thereof may provide her with the specialized knowledge that

qualifies her to testify as an expert. Wyatt, 23 S.W.3d at 27; Turner v. State, 252 S.W.3d

571, 585 (Tex. App.—Houston [14th Dist.] 2008, pet. ref'd). The evaluation of an expert’s

qualifications entails a two-step inquiry: first, whether the witness possesses sufficient

background in a particular field; and second, whether that background goes to the matter

on which the witness is to give an opinion. Davis v. State, 329 S.W.3d 798, 813 (Tex.

Crim. App. 2010); Vela, 209 S.W.3d at 131 (citing Broders v. Heise, 924 S.W.2d 148, 153

(Tex. 1996)). The focus is on the fit between the subject matter at issue and the expert’s

familiarity with it. Davis, 329 S.W.3d at 813; Vela, 209 S.W.3d at 133. Because the

spectrum of education, skill, and training is so wide, a trial court has great discretion in

determining whether a witness possesses appropriate qualifications as an expert on a

specific topic in a particular case. Davis, 329 S.W.3d at 813. To be qualified to give

expert opinion testimony, the witness “must possess some additional knowledge or

expertise beyond that possessed by the average person, but the gap need not necessarily

be monumental.” Davis v. State, 313 S.W.3d 317, 350 (Tex. Crim. App. 2010).

C. Analysis


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        Appellant challenges only the witness’s qualification. Mumphord testified that

she is a licensed registered nurse, and has practiced nursing for twenty years. She is

employed by DeTar Hospital where she works in labor and delivery and as a SANE nurse.

She has been certified as a SANE nurse by the State of Texas for eight years. As a

SANE nurse, she is responsible for examining patients who have reported a sexual

assault. Her examinations are conducted pursuant to standards promulgated by the

State of Texas.

       The aforementioned background provides a sufficient basis for Mumphord to testify

as an expert in the field of sexual assault examinations. As a sexual assault nurse

examiner, Mumphord was qualified to opine that, on the basis of her examination, M.S.’s

injuries were consistent with sexual assault.     See Gregory v. State, 56 S.W.3d 164,

179–80 (Tex. App.—Houston [14th Dist.] 2001, pet. dism’d) (nurses and other medical

professionals may be qualified as experts in evaluating sexual assault cases, although a

medical license or degree is not “the litmus test” for qualification as an expert); see also

Moore v. State, No. 07-09-00363-CR, 2011 WL 3717058, at *4 (Tex. App.—Amarillo Aug.

23, 2011, no pet.) (mem. op., not designated for publication) (holding trial court could

have reasonably concluded SANE nurse was qualified to render opinion on potential

cause of victim’s injuries given her considerable experience in evaluating sexual assault

complainants and her personal examination of the victim); Jernigan v. State, No. 11-07-

00028-CR, 2008 WL 3845457, at *2 (Tex. App.—Eastland Aug. 14, 2008, no pet.) (mem.

op., not designated for publication) (concluding SANE nurse was qualified to provide the

following opinion: “The findings . . . from the examination I gave her are consistent with


                                            12
her history.”); Chevez v. State, No. 05-98-01904-CR, 2000 WL 1618459, at *3 (Tex.

App.—Dallas Oct. 31, 2000, pet. ref’d) (mem. op., not designated for publication)

(concluding trial court did not abuse its discretion in determining SANE nurse was

qualified to render expert opinion concerning causation of victim’s injuries); Kelly v. State,

No. 11-98-00230-CR, 1999 WL 33748041, at *2 (Tex. App.—Eastland Nov. 18, 1999, no

pet.) (mem. op., not designated for publication) (holding trial court did not abuse its

discretion in allowing SANE nurse to testify as an expert witness in a sexual assault case).

       We conclude the trial court did not abuse its discretion in allowing Mumphord to

testify whether M.S.’s injuries and history were consistent with a sexual assault.

Appellant’s third point is overruled.

                                        V. CONCLUSION

       We affirm the judgment of the trial court.


                                                     GREGORY T. PERKES
                                                     Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
3rd day of September, 2015.




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