                                      In The

                               Court of Appeals

                    Ninth District of Texas at Beaumont

                              __________________

                              NO. 09-17-00319-CR
                              NO. 09-17-00320-CR
                              __________________

                     JAMES RAY HAGGARD, Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee

__________________________________________________________________

                On Appeal from the 75th District Court
                        Liberty County, Texas
               Trial Cause No. CR30744 (Counts 1 and 2)
__________________________________________________________________

                          MEMORANDUM OPINION

      A jury found James Ray Haggard (Haggard or Appellant) guilty of one count

of sexual assault of a child and one count of indecency with a child by contact. See

Tex. Penal Code Ann. §§ 21.11, 22.011(a)(2) (West 2019). 1 Haggard pleaded “true”



      1
        We cite current versions of the statutes because subsequent amendments do
not affect our disposition.
                                          1
to enhancement paragraphs in the indictment alleging prior felony convictions, and

the trial court sentenced Haggard to twenty-five years of confinement in each count,

with the sentences to be served consecutively. Raising seven issues, Haggard

appeals.

                         Background and Evidence at Trial

      A grand jury indicted Haggard for the offenses of sexual assault of a child and

indecency with a child, and the indictment alleged that on or about October 5, 2013,

Haggard

                                     COUNT I

      . . . intentionally or knowingly cause[d] the sexual organ of [M.W.] 2 to
      contact or penetrate the mouth of the defendant, without the consent of
      [M.W.], a child younger than 17 years of age and not the spouse of the
      defendant,
      and/or
      then and there, intentionally or knowingly cause[d] the sexual organ of
      [M.W.] to contact or penetrate the sexual organ of the defendant,
      without the consent of [M.W.], a child younger than 17 years of age and
      not the spouse of the defendant,
      and/or
      then and there, intentionally or knowingly cause[d] the penetration of
      the sexual organ of [M.W.] by defendant’s finger, without the consent
      of [M.W.], a child younger than 17 years of age and not the spouse of
      the defendant,
      and/or
      2
         We refer to the victim, family members, and some others with initials or
aliases. See Tex. Const. art. I, § 30 (granting crime victims “the right to be treated
with fairness and with respect for the victim’s dignity and privacy throughout the
criminal justice process”).
                                           2
      then and there, intentionally or knowingly cause[d] the penetration of
      the sexual organ of [M.W.] by defendant’s sexual organ, without the
      consent of [M.W.], a child younger than 17 years of age and not the
      spouse of the defendant[.]

                                     COUNT II

      . . . with the intent to arouse or gratify the sexual desire of said
      defendant, engage[d] in sexual contact with [M.W.] by touching the
      breast of [M.W.], a child younger than 17 years of age and not the
      spouse of the defendant,
      and/or
      then and there, with the intent to arouse or gratify the sexual desire of
      said defendant, engage[d] in sexual contact with [M.W.] by touching
      the genitals of [M.W.], a child younger than 17 years of age and not the
      spouse of the defendant,
      and/or
      then and there, with the intent to arouse or gratify the sexual desire of
      said defendant, cause[d] [M.W.], a child younger than 17 years of age
      and not the spouse of the defendant, to engage in sexual contact by
      causing the said [M.W.] to touch the genitals of the defendant,
      and/or
      then and there, with the intent to arouse or gratify the sexual desire of
      the defendant, cause[d] [M.W.], a child younger than 17 years of age
      and not the spouse of the defendant, to expose her genitals[.]

      M.W. testified that she referred to Haggard as “Uncle James,” that he is related

to her but not her uncle. According to M.W., she was close with him and spent a lot

of time at his house. M.W. testified that her family has been divided since October

5, 2013, due to Haggard’s assault against her. M.W. testified that on October 5, 2013,

when she was fifteen years old, she got in Haggard’s bed with him because she did

not want to sleep on the floor, he showed her pornography, he asked her to take her

                                          3
clothes off, he caused her sexual organ to contact or penetrate his mouth, he

contacted or penetrated her sexual organ without her consent, he penetrated her sex

organ with his finger, he caused her to contact his sex organ, he touched her breast

with a part of his body, he touched her genitals with a part of his body, he caused

her to touch his genitals, and he caused her to expose her genitals to him. M.W.

testified that Haggard’s actions were done to make him sexually aroused. According

to M.W., he stopped when he thought he heard someone approaching the bedroom

and he told M.W. to put her clothes on. M.W. testified that she texted her friend that

night and called her boyfriend that next morning and told them what had happened.

      The morning after the assault, while Haggard was at the doughnut shop, M.W.

called her mother crying and asked her mother to pick her up. M.W. testified that

about an hour later her aunt picked her and her sister up. M.W. testified that on the

way home she and her aunt discussed what took place to some extent. According to

M.W., at some point her father arrived at the house, but she only gave an account of

what happened to her mother and her aunt. M.W. testified that her mother bagged

up her clothes when she changed clothes. M.W. testified that on the following

Monday she went to the hospital for a sexual assault exam and answered questions

asked by the nurse performing the exam and completing a report. M.W. testified that

she also recalled being interviewed at Bridgehaven on October 15, 2013.

                                          4
      T.W., M.W.’s mother, testified that Haggard is her cousin and that she has

known Haggard her entire life. According to T.W., on October 5, 2013, her children

had been “hanging out with [Haggard’s] kids” at Haggard’s house as they typically

would. T.W. testified that she left around 8 p.m. and two of her children, A.W. and

M.W., stayed the night at Haggard’s house. T.W. testified that around 8:30 a.m. the

following morning she received a phone call from M.W. and she sounded distressed.

After they spoke, T.W. “took a minute to kind of grasp . . . what [M.W.] had told

[her,] and then T.W. called L.B., her brother’s ex-wife and one of her closest friends,

to ride with her to pick M.W. up. T.W. testified that because M.W. kept calling

distressed and asking her to hurry up, she had L.B. pick her up instead because L.B.

lived closer and L.B. could get there faster.

      According to T.W., L.B. brought M.W. back to T.W.’s house and M.W.

relayed to them what had happened at Haggard’s house. T.W. explained that she

walked in and out of the room because she did not want to hear the details, and she

“just heard bits and pieces of it[.]” T.W. testified that she believed M.W., T.W. was

hurt and angry and that what she heard “changed everything[,]” and that Haggard

was “like a brother to [her].” T.W. testified that that evening they left for her niece’s

birthday party because plans had already been made and she did not know yet how

to handle the news of the assault. Before they left for the party, M.W. showered and

                                           5
T.W. had M.W. put the clothes she had worn at Haggard’s house in a “zip lock bag[]”

because “[M.W.] had said that there was stuff on the clothing[.]” According to T.W.,

L.B. picked M.W. up from school the next morning and took her to the hospital

because T.W. could not leave work then, but T.W. met them there later after she had

arranged with her boss for her to leave work. Hospital personnel notified law

enforcement and T.W. provided law enforcement with her written statement.

      L.B. testified that she previously had been married to T.W’s brother, and after

the divorce, L.B. remained friends with T.W. L.B. testified that she had known M.W.

since M.W.’s birth, and that M.W. referred to her as her “aunt[.]” According to L.B.,

on October 6, 2013, she had a phone call conversation with M.W.’s mother and

initially L.B. was going to go and see M.W. once M.W.’s mother picked M.W. up

from Haggard’s house, but the plans changed and L.B. picked M.W. up from

Haggard’s house. L.B. explained that she had been to Haggard’s house “probably

seven or eight times[]” before and that when she picked up M.W., M.W. stepped out

on the porch as L.B. pulled up and then L.B. walked into Haggard’s house. L.B.

testified that she was at Haggard’s house for approximately four or five minutes, she

spoke to Haggard, and that his demeanor “seemed normal.”

      According to L.B., she picked up M.W. and A.W and that on the way to

M.W.’s house M.W. seemed quieter than usual. L.B. testified that M.W. recited the

                                         6
events of what had taken place at Haggard’s house several times to her and M.W.’s

mother, and that although the basis of the account did not change, the account

became more detailed. L.B. testified that she saw a mark on M.W.’s breast that was

consistent with her having been assaulted. After several hours, L.B. left to allow

M.W.’s parents to decide how to proceed. L.B. testified that M.W.’s mother was

struggling with how to proceed because of the potentially “devastating” impact to

the family and she was “really scared, really upset, really lost.” L.B. explained that

at the time of the incident she worked in a sex offender rehabilitation program in the

prison, that she called a rape crisis center to get information on what she should do

because she felt like M.W. needed to go to a doctor and be examined, and that later

that day she called T.W. and told her she was going to pick up M.W. and take her to

the hospital, that M.W.’s mother was agreeable to that, and L.B. took M.W. to the

hospital. According to L.B., M.W. was nervous and scared on the way to the hospital

and that “[s]he cried quite a bit that day.” L.B. testified that she gave the clothes that

M.W. had been wearing on the day of the assault in a plastic bag to hospital

personnel. M.W.’s mother arrived at the hospital later.

      Suzanne Devore, a sexual assault nurse examiner (SANE) employed by

Memorial Hermann Hospital on October 7, 2013, testified that she performed a

sexual assault exam on M.W. According to the SANE’s report, M.W. was brought

                                            7
in by her aunt, L.B., and that M.W. reported being sexually assaulted on October 5,

2013. The SANE testified that, according to her report, M.W. stated the following

to her just prior to the exam:

            I was in my uncle’s, James Haggard, house on Saturday and he
      pulled me back to his bedroom. He’s my uncle, and I didn’t think he
      would do anything perverted.
            He told me to take off my shirt. I told him I felt uncomfortable.
      He wasn’t forcing me, but he took my bottoms off and started playing
      with my boobs with his fingers and started licking them.
            On my right boob I have a hickey. . . .

             ....

            He went down on me, his mouth inside and outside my vagina,
      and then started doing the dirty deed, his penis inside my vagina[.]
            He heard someone walking down the hall and said, “Hurry up
      and put on your clothes.” He kept saying [] I better not tell because he
      would lose his baby and if anyone found out he would go to jail.

             ....

            He said, “You better not tell your mom.” I had an hour of sleep.
      I woke up, called my mom, and told her to come get me. She asked if
      he had tried to touch me; and I said yes, he did.
            My mom asked me because my sister who is six doesn’t want to
      go over there anymore, and my mom thinks my uncle’s boy who is 10
      touched me.

      After the sexual assault exam of M.W., the SANE noted in her report that

there was no trauma to M.W.’s sexual organs, but that M.W. had a bruise on her

right breast that the SANE believed was recent based on its coloring. The sexual


                                         8
assault exam report and photographs of M.W.’s bruise taken the day of the exam

were admitted into evidence.

      Detective Stephen Clappart, the chief investigator for the Harris County

District Attorney’s Office, testified that he observed via closed circuit television the

forensic interview of M.W. at Bridgehaven. Detective Clappart testified that he

noted in his report that the account of events that M.W. gave to the SANE examiner

was slightly different from what she gave to the Bridgehaven examiner in that she

reported to one of the examiners that Haggard had pulled her into the bedroom but

she did not report that to the other examiner. According to Detective Clappart, he

obtained buccal swabs from Haggard.

      Jessica Lake, a forensic scientist at the Texas Department of Public Safety

crime lab, testified that she performed serology testing on evidence she had received

for the case. According to Lake, M.W.’s vaginal and anal swabs from the sexual

assault kit tested negative for the presence of semen and sperm, and that panties, bra,

a sports bra, and a shirt allegedly worn by M.W. on the day of the alleged sexual

assault also tested negative for the presence of semen. Lake’s Forensic Biology

Laboratory Report was admitted into evidence.

      Andrea Smith, a forensic scientist with the Texas Department of Public Safety

crime laboratory, testified that she works on the same team as Lake and completed

                                           9
DNA testing in the case. Smith testified that the DNA profile from the vaginal swab

was consistent with M.W. Smith tested the swab of M.W.’s right breast and

concluded that M.W. and Haggard could not be excluded as contributors to the

profile. According to Smith, under DNA Minifiler testing of the swab of M.W.’s

right breast, the DNA profile “is 339 billion times more likely if the DNA came from

[M.W.] and James Haggard than if the DNA came from [M.W.] and one unrelated

unknown individual.” Smith testified that using newer and more advanced testing

with STRmix probabilistic genotyping software, the profile obtained from the swab

is “219 quadrillion times more likely if the DNA came from [M.W.] and James

Haggard than if the DNA came from [M.W.] and one unrelated unknown

individual.” Smith’s DNA Laboratory Report, Supplemental DNA Laboratory

Report, and Minifiler Laboratory Report were admitted into evidence.

                          Testimony via Facebook Live3

      In issue one, Haggard argues the trial court erred in permitting the SANE to

testify, over Haggard’s objection, via “Facebook Live” and that he was harmed by


      3
        On appeal, Appellant refers to the live two-way video streaming capability
as “Facebook Live[,]” but the trial record reflects that the application used for the
SANE’s testimony was “FaceTime[,]” which is “an application that allows
individuals to make video calls from telephones[,]” and “FaceTime may also be run
from other electronic devices.” Perone v. State, No. 14-12-00969-CV, 2014 Tex.
App. LEXIS 4078, at *6 (Tex. App.—Houston [14th Dist.] Apr. 15, 2014, no pet.)
(mem. op., not designated for publication) (footnotes omitted).
                                         10
such error. The central purpose of the Sixth Amendment’s Confrontation Clause is

to ensure the reliability of the evidence against a criminal defendant by subjecting it

to rigorous testing in an adversarial proceeding before the trier of fact. Maryland v.

Craig, 497 U.S. 836, 845 (1990). Accordingly, “‘the Confrontation Clause reflects

a preference for face-to-face confrontation at trial[.]’” Id. at 849 (emphasis in

original) (quoting Ohio v. Roberts, 448 U.S. 56, 63 (1980). In the absence of an

actual face-to-face confrontation, a defendant’s right to confront accusatory

witnesses may be satisfied if (1) denial of such confrontation is necessary to further

an important public policy and (2) the reliability of the testimony is otherwise

assured. Id. at 850.

      After voir dire but prior to the presentation of evidence, the State made an oral

motion to allow the SANE, as an expert and a fact witness to the extent of what the

sexual assault examination entailed and evidence she gathered incident to the

examination, to testify via “Face Time.” The defense objected under the Sixth

Amendment confrontation clause and the Fifth Amendment due process clause, and

cited Maryland v. Craig, and U.S. v. Yates, 438 F.3d 1307 (11th Cir. 2006) in

support. The trial court went over the FaceTime procedure on the record. The trial

court confirmed that the SANE would be displayed “at least on the 60 or 65-inch TV

that the jury can view[,]” defense counsel and the defendant could see the testimony,

                                          11
the jury would have view of the SANE’s face at all times during her testimony, the

SANE could see the person asking questions, and that the SANE would be given

instructions to “stay[] in front of the camera system . . . which is whatever her device

is[.]”

         Prior to the trial court overruling the objection, the trial court, State’s counsel,

and Haggard’s counsel engaged in the following discussion:

         THE COURT: Well, I think [Maryland v. Craig] was a situation where
         they put the witness behind a screen and asked questions of the witness.
                 We’re not talking -- I mean that way the jury would be deprived
         of viewing the witness’ demeanor or expressions and other indicia of
         the reliability or lack of reliability that a face to face confrontation
         would otherwise supply.
                 It’s the court’s understanding that the Sixth Amendment
         confrontation clause is designed to ensure the reliability of the evidence
         that’s actually received, and the reliability of that evidence has to be
         testified through rigorous cross examination.
                 It’s the court’s opinion that anything that would have the chilling
         effect on the right of cross examination would by its very nature be
         suspect but --

         ....

         [Defense Counsel]: That case, Maryland versus Craig came up with the
         Craig ruling; and then you have Yates in 2006. The reason in Yates, the
         Australian witnesses could not testify in Alabama is they were
         unwilling to travel.
                The government asserted that the important public policy reasons
         for allowing them to testify utilizing two-way video conference for
         providing the fact-finder with crucial evidence expeditiously and justly
         resolving the case in ensuring that foreign witnesses can so testify.


                                              12
       The 11th Circuit held that these concerns were not the type of
public policies that are important enough to outweigh the defendant’s
rights to confront their accusers face to face.
       My understanding of the Maryland versus Craig, what came out
of that, Judge, was that -- let’s see.

THE COURT: Counsel, I don’t mean to interrupt; but I think what’s
crucial to a determination of the state’s request is the function that this
witness is going to provide in the case.
       Now, if we’re talking about a witness that is a fact witness to the
point that that witness will be called upon to make an identification of
the defendant as the alleged perpetrator cross examination face to face
I think is crucial; but here we’re talking about an expert witness that is
not going to be called upon to make any in-court identification or is not
going to be called upon to testify to any of the factual allegations
contained in the indictment.

[Defense Counsel]: Judge, I don’t think the Supreme Court
differentiates between a state’s witness. They have the power to
subpoena a witness or have them come.
       She has chosen not to come. There is no public policy that
alleviates what -- I believe even the 9th Circuit says they should be able
to have confrontation face to face. In doing so you will set a precedent
not only in this court but all over, Judge.
       The only time I have seen them allow someone not to be present
is because of some type of medical issue or maybe they are out of
Country or something to that or in the military or something to that
effect, but just because they don’t want to come --

THE COURT: I agree with you, counsel; but those were witnesses as
to the operative facts of the case. They were not a witness situated such
as this witness and that is as an expert witness.
       Now, who is this witness associated with at the time? A hospital?

[Prosecutor]: Yes, sir. I believe it was part of the Hermann Hospital
group.


                                    13
THE COURT: [T]here is a procedure available to secure the presence
of out of state witnesses.
       Now, you represented to the court that at all times this witness
indicated her willingness to accept reimbursement of compensation for
travel expenses and would actually appear in person; is that true?

[Prosecutor]: That is true. I have [someone] that has been in direct
contact with her that can testify to that.

THE COURT: When did this change?

[Prosecutor]: Friday.

THE COURT: Friday being --

[Prosecutor]: Three days ago.

THE COURT: The 11th, and today is August 14th. Obviously[,] you
don’t have time to secure an order from the appropriate court in
Montana to direct the witness to do anything.

[Prosecutor]: Judge, it was 2:00 o’clock in the afternoon, between 1:00
and 2:00 when we even found out about it, Judge.

THE COURT: Well, the best authority in Texas is [Stevens v. State, 234
S.W.3d 748 (Tex. App.—Fort Worth 2007, no pet.).] [I]t found that the
decision of the court to allow or not to allow should be examined on an
abuse of discretion standard.
       This again constituted a fact witness that appeared by Skype or
some other device similar to what is being proposed here. It went on to
note the salutary effects of face to face confrontation include the giving
of testimony under oath.
       I’m assured this will occur in this particular case. We won’t allow
any testimony not to be under oath by a person authorized to administer
oaths. [Also], [t]he opportunity for cross examination.
       The court concludes the manner in which it’s being proposed will
not have a chilling effect on the right of cross examination, the ability
of the fact-finder to observe demeanor evidence -- and you assure me
                                     14
that the witness will be instructed to stay in front of a TV that will be
broadcast on a 60 to 65-inch TV for the jury’s consideration -- the
reduced risk that a witness will wrongfully implicate an innocent
defendant when testifying in his presence.
       That is not an element in this case because this witness is an
expert witness and will be testifying only to perhaps her training and
then what she did incident to her sexual assault examination, right?

[Prosecutor]: That’s correct.

....

[Prosecutor]: She collected the SANE kit and submitted the SANE kit
to the sheriff’s department to put in the chain of custody to send it to
the DPS lab along with everything else.

....

[Defense Counsel]: Again, Judge, my belief is that this can only happen
with exceptional circumstances that outweigh or public policy that
outweighs my client’s constitutional rights to confront the witness face
to face here in the courtroom.

THE COURT: [I]f this is anything other than an expert witness I think
I would have to agree with you. I think the Texas cases also recognize
that exceptional circumstances must exist to allow.

....

THE COURT: . . . . If [Defense counsel] wants to recall her in his case
in chief, then he cannot be deprived of that opportunity. . . .

....

THE COURT: . . . . Assuming that the manner in which this testimony
will be presented is exactly as represented to the court, that counsel will
have a full opportunity to observe the witness, the witness will be able
to see the questioner be it the state or the defense counsel, that the
                                    15
      witness will at all times be in full view for the jury’s consideration as
      to demeanor, etc., and that the witness has no personal knowledge of
      any facts as alleged in the indictment and only testify as an expert
      witness as far as being a SANE examiner and what she did incident to
      that examination in identifying anything that she retrieved from the
      examination, the court is going to allow the testimony in that manner.

      Haggard objected again when the State called the SANE to testify, arguing it

violated due process as contained in the Sixth Amendment right to confrontation,

and the trial court overruled the objection. The trial court further noted that cross-

examination would be available, the witness was in full view, and that that witness

was an expert witness and not a fact witness for identification purposes. The SANE

testified that she chose to not appear at trial, had no medical issue preventing her

from appearing at the trial, and she was not subpoenaed. According to the SANE,

she is a consultant for hospitals and attorneys, and she chose not to attend the trial

for personal and economic reasons because she had travelled to Houston the prior

week to testify in another trial and had to travel back to Houston soon to be with a

family member in hospice care. The SANE explained that she had agreed to appear

and testify and the State did not subpoena her, but the Friday before the trial she

changed her mind.

      On appeal, Haggard contends that as to the SANE’s testimony via live

videoconference “there was no important public interest for her to do so, nor was the

reliability of her testimony assured to override Appellant’s right to confront her[,]”
                                          16
and that the testimony contributed to Haggard’s convictions. According to Haggard,

(1) the SANE’s failure to appear was voluntary and the State did not issue a

subpoena, (2) the SANE was given an oath in Montana by a notary public and not

by the clerk of the court or judge in Liberty County, (3) the record does not reflect

that Haggard was moved so that the SANE could see him or that the trial court

instructed the SANE be able to see Haggard, and (4) the jury’s ability to observe the

SANE’s demeanor was impaired when the live videoconference connection was lost

momentarily as the SANE recited what M.W. had reported to her.

      Even assuming without deciding that the trial court abused its discretion in

allowing the SANE’s testimony, the violation of the Sixth Amendment right of

confrontation constitutes constitutional error that is subject to a harmless error

analysis. Shelby v. State, 819 S.W.2d 544, 546 (Tex. Crim. App. 1991) (citing

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).

      When assessing harm under a Confrontation Clause issue, we apply a three-

pronged test. Id. at 547. First, we assume that the damaging potential of the cross-

examination was fully realized. Id. Second, with that assumption in mind, we review

the error by considering the following factors: the importance of the witness’s

testimony in the State’s case, whether the testimony was cumulative, the presence

or absence of evidence corroborating or contradicting material points of the

                                         17
witness’s testimony, the extent cross-examination was otherwise permitted, and the

overall strength of the State’s case. Id. Third, we determine whether the error was

harmless beyond a reasonable doubt. Id.

      The SANE was an expert witness who testified about what M.W. reported to

her, the findings from her examination of M.W., and the chain of custody regarding

evidence the SANE obtained. After reviewing the entire record, we conclude that

much of the SANE’s testimony was cumulative of M.W.’s testimony, and the SANE

was not a crucial identification or fact witness. The record demonstrates that the trial

court permitted Haggard to fully cross-examine the SANE. There was evidence

introduced from M.W., L.B., and T.W., as well as from the forensic witnesses that

corroborated the material points of the SANE’s testimony, and the State’s case was

not dependent upon the SANE’s testimony.

      M.W.’s testimony alone is sufficient to support Haggard’s convictions. See

Tex. Code Crim. Proc. Ann. art. 38.07(b)(1) (West Supp. 2018); Garcia v. State, 563

S.W.2d 925, 928 (Tex. Crim. App. 1978) (sexual assault of a child); Jones v. State,

428 S.W.3d 163, 169-70 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (indecency

with a child). M.W. testified that on October 5, 2013, when she was fifteen years

old, she got in Haggard’s bed with him because she did not want to sleep on the

floor, he showed her pornography, he asked her to take her clothes off, he caused

                                          18
her sexual organ to contact or penetrate his mouth, he contacted or penetrated her

sexual organ without her consent, he penetrated her sex organ with his finger, he

caused her to contact his sex organ, he touched her breast with a part of his body, he

touched her genital with a part of his body, he caused her to touch his genitals, and

he caused her to expose her genitals to him. M.W. testified that Haggard’s actions

were done to make him sexually aroused. Also, the jury heard the testimony of a

forensic scientist that the profile obtained from the swab from M.W.’s breast is “219

quadrillion times more likely if the DNA came from [M.W.] and James Haggard

than if the DNA came from [M.W.] and one unrelated unknown individual.”

Because our review of the record shows that the properly admitted evidence

overwhelmingly established Haggard’s guilt, we conclude, beyond a reasonable

doubt, that the admission of the SANE’s testimony via live videoconferencing did

not contribute to Haggard’s convictions. We overrule issue one.

                     “T’s” Presence During M.W.’s Testimony

      In issue two, Haggard argues that the trial court erred in allowing “T” to stand

behind nineteen-year-old M.W. during her testimony. According to Haggard, M.W.

was an adult at the time of trial and the trial court made no findings pursuant to

article 38.074 of the Texas Code of Criminal Procedure. Prior to M.W.’s testimony,

the following exchange occurred outside of the jury’s presence:

                                         19
      [Prosecutor]: Judge, pursuant to the code [M.W.]’s requesting that she
      be allowed a support person to stand in the courtroom with her. She
      was a child victim.
             Although she’s an adult now she would like to have T[] stand
      behind her.

      THE COURT: It will be permitted. All right. We’re going to bring the
      jury in. If you will just stand where you are. In a moment I will ask
      your name and swear you in.

      Section 3(b) of article 38.074, titled “Testimony of Child in Prosecution of

Offense[,]” provides that

      “[o]n the motion of any party . . ., the court shall allow the child to have
      a toy, blanket, or similar comforting item in the child’s possession while
      testifying or allow a support person to be present in close proximity to
      the child during the child’s testimony if the court finds by a
      preponderance of the evidence that: (1) the child cannot reliably testify
      without the possession of the item or presence of the support person, as
      applicable; and (2) granting the motion is not likely to prejudice the
      trier of fact in evaluating the child’s testimony.”

Tex. Code Crim. Proc. Ann. art. 38.074, § 3(b) (West Supp. 2018). Section

1(2) provides that a “‘[s]upport person’ means any person whose presence would

contribute to the welfare and well-being of a child.” Id. § 1(2). Section 1(1) states

that in Article 38.074 “child” has the meaning assigned by section 22.011(c) of the

Penal Code, which defines “child” as “a person younger than 17 years of age.” Id.

§ 1(1); Tex. Penal Code Ann. 22.011(c)(1). Section 3(d) provides that the “court

may set any other conditions and limitations on the taking of the testimony of a child

that it finds just and appropriate, considering the interests of the child, the rights of
                                          20
the defendant, and any other relevant factors.” Tex. Code Crim. Proc. Ann. art.

38.074, § 3(d). “A support person who is present during a child’s testimony may not:

(1) obscure the child from the view of the defendant or the trier of fact; (2) provide

the child with an answer to any question asked of the child; or (3) assist or influence

the testimony of the child.” Id. § 3(c).

       Haggard’s counsel did not object to “T’s” presence nor did Haggard’s counsel

request findings pursuant to article 38.074, section 3(b). Accordingly, his complaint

about “T’s” presence during M.W.’s testimony is not preserved for appellate review.

See Tex. R. App. P. 33.1(a) (preserving error for appellate review requires the

complaining party to show that he presented his complaint to the trial court in a

timely request, objection, or motion and that the trial court ruled on the request). We

overrule issue two.

                       Ineffective Assistance of Trial Counsel

       In issue three, Haggard claims his trial counsel was ineffective for not

objecting to opinion testimony as to M.W.’s credibility and in not objecting to “T’s”

presence behind M.W. during her testimony. Haggard argues these errors deprived

him of a fair trial.

       A defendant has a Sixth Amendment right to the effective assistance of

counsel at trial. U.S. Const. amend. VI; see Strickland v. Washington, 466 U.S. 668,

                                           21
685-86 (1984). To establish that he received ineffective assistance of counsel,

Haggard must demonstrate that (1) counsel’s performance fell below an objective

standard of reasonableness, and (2) there is a reasonable probability that, but for

counsel’s errors, the result of the proceeding would have been different. See

Strickland, 466 U.S. at 687-88, 694. The party alleging ineffective assistance has the

burden to develop facts and details necessary to support the claim. See Jackson v.

State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). A party asserting an ineffective-

assistance claim must overcome the “strong presumption that counsel’s conduct fell

within the wide range of reasonable professional assistance.” See Thompson v. State,

9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Strickland, 466 U.S. at 689). An

appellant’s failure to make either of the required showings of deficient performance

or sufficient prejudice defeats the claim of ineffective assistance. Rylander v. State,

101 S.W.3d 107, 110 (Tex. Crim. App. 2003); see also Williams v. State, 301 S.W.3d

675, 687 (Tex. Crim. App. 2009) (“An appellant’s failure to satisfy one prong of the

Strickland test negates a court’s need to consider the other prong.”).

      The right to effective assistance of counsel ensures the right to “reasonably

effective assistance[,]” and it does not require that counsel must be perfect or that

the representation must be errorless. See Ingham v. State, 679 S.W.2d 503, 509 (Tex.

Crim. App. 1984). The appropriate context is the totality of the representation;

                                          22
counsel is not to be judged on isolated portions of his representation. See Thompson,

9 S.W.3d at 813; Solis v. State, 792 S.W.2d 95, 98 (Tex. Crim. App. 1990). Isolated

failures to object to improper evidence or argument ordinarily do not constitute

ineffective assistance of counsel. See Ingham, 679 S.W.2d at 509; Ewing v. State,

549 S.W.2d 392, 395 (Tex. Crim. App. 1977). To meet his burden regarding his

claim that his counsel was ineffective for failing to object to evidence, Appellant

must also establish that the trial court would have committed error in overruling such

objection had an objection been made. See Vaughn v. State, 931 S.W.2d 564, 566

(Tex. Crim. App. 1996).

      Ordinarily, on direct appeal, the record will not have been sufficiently

developed during the trial to demonstrate in the appeal that trial counsel provided

ineffective assistance under the Strickland standards. Menefield v. State, 363 S.W.3d

591, 592-93 (Tex. Crim. App. 2012). Before we denounce trial counsel’s actions as

ineffective, counsel should normally be given an opportunity to explain the

challenged actions. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.

2005). When counsel has not been given an opportunity to explain the challenged

actions, we will only find deficient performance if the conduct was “‘so outrageous

that no competent attorney would have engaged in it.’” Id. (internal citations

omitted).

                                         23
      Haggard asserts that trial counsel was deficient in failing to object to the

State’s questioning of T.W. regarding whether she believed what M.W. told her

about the incident. According to Haggard, there is no objectively reasonable reason

for not objecting to the question as the testimony decides a critical issue for the jury,

the credibility and truthfulness of the complainant, and that the trial court would

have erred if it had overruled the objection had counsel objected. Haggard also

argues that an objectively reasonable trial attorney would have objected to M.W.

having a support person (“T”) present during M.W.’s testimony because section

38.074 of the Texas Code of Criminal Procedure does not permit a person testifying

at age nineteen to have a support person present during her testimony. As to both

instances, Haggard argues that the jury used the evidence as proof of Haggard’s guilt

or to find M.W.’s testimony more credible, and therefore, there is a reasonable

probability that, but for these deficiencies, the result of the trial would have been

different.

      As to trial counsel’s failure to object to the State’s questioning of T.W.

regarding whether she believed M.W.’s account of the incident, counsel’s trial

strategy could have been to permit the State to predicate its case on M.W.’s

credibility and then undermine M.W.’s credibility by cross-examining M.W., T.W.,

and L.B. regarding the details given by M.W. in her accounts of the incident. The

                                           24
record before us does not support Haggard’s contention that no reasonable trial

strategy could have existed for his counsel’s failure to object to the questioning of

T.W. regarding whether she believed M.W. Based on the record before us, Haggard

has failed to overcome the “strong presumption” that his trial counsel provided

reasonably professional assistance by not objecting to this question by the State. See

Thompson, 9 S.W.3d at 813 (citing Strickland, 466 U.S. at 689). Furthermore,

Haggard has failed to show that there is a reasonable probability that, but for

counsel’s failure to object to the State’s question, the result of the proceeding would

have been different. See Strickland, 466 U.S. at 694. The jury heard M.W.’s own

testimony, saw photographs of M.W. after the incident, and heard testimony by a

forensic scientist of the likelihood that Haggard was a contributor to the DNA swab

of M.W.’s right breast. A reasonable jury could have found Haggard guilty even if

it had not heard T.W.’s testimony that she believed M.W.

      Even assuming without deciding that the trial court would have sustained an

objection by Haggard’s trial counsel to “T’s” presence during M.W.’s testimony and

that “T’s” presence was error, Haggard has not met his burden to demonstrate that

the result would have been different if the presence of “T” as a “support person” had

not been allowed. See id. at 687-88, 694. Haggard does not argue that “T” in any

way influenced M.W.’s testimony, and Haggard’s claim that the jury found M.W.

                                          25
more credible due to the presence of “T” is purely speculative. We overrule issue

three.

                                    Jury Charge Error

         In issues four and five, Haggard contends the trial court erred because the jury

charge in each count allowed for a non-unanimous verdict and, as a result, Haggard

suffered egregious harm.

         As to Count I, Haggard asserts the State’s indictment alleged four separate

and distinct offenses, the jury was not instructed that it cannot return a guilty verdict

unless it unanimously agrees upon the commission of any one of the criminal acts,

and the unanimity requirement is undercut when a jury risks convicting the

defendant of different acts instead of agreeing on the same act for a conviction. The

jury charge verdict form for Count I asked the jury to find Haggard guilty or not

guilty of “the felony offense of Sexual Assault of a Child as charged in Count I of

the indictment.” The application paragraph of the jury charge as to Count I stated

the following:

               You must decide whether the State has proved, beyond a
         reasonable doubt, four elements. The elements are that:
               1. On or about the 5th day of October, 2013, in Liberty County,
                  Texas;
               2. The defendant . . . did then and there[] intentionally or
                  knowingly;
               3. Cause:

                                            26
                 a. The sexual organ of [M.W.] to contact or penetrate the
                    mouth of the defendant, and/or
                 b. The sexual organ of [M.W.] to contact or penetrate the
                    sexual organ of the defendant, and/or
                 c. The penetration of the sexual organ of [M.W.] by
                    defendant’s finger, and/or
                 d. The penetration of the sexual organ of [M.W.] by
                    defendant’s sexual organ;
             4. Without the consent of [M.W.], a child younger than 17 years
                 of age and not the spouse of the defendant.
             You must all agree on elements 1, 2, 3, and 4 listed above.
             If you all agree the State has proved each of the four elements
      listed above, beyond a reasonable doubt, you must find the defendant
      “guilty.”
             If you all agree the State has failed to prove, beyond a reasonable
      doubt, one or more of elements 1, 2, 3, or 4 listed above you must find
      the defendant “not guilty.”

      Haggard argues that the jury charge as to the sexual assault charge was infirm

because the indictment sought to convict Haggard of sexual assault of a child in one

conviction by proving any of the two offenses alleged within one count, the trial

court instructed the jury in the application paragraph that they could find Haggard

guilty if they believed either of the two offenses, and that the unanimity requirement

is undercut when a jury risks convicting the defendant of different acts instead of

agreeing on the same act for a conviction.

      As to Count II, the jury charge verdict form asked the jury to find Haggard

guilty or not guilty of “the felony offense of Indecency with a Child by Sexual



                                         27
Contact as charged in Count II of the indictment.” The application paragraph of the

jury charge as to Count II stated the following:

             You must decide whether the State has proved, beyond a
      reasonable doubt, four elements. The elements are that:
             1. On or about the 5th day of October, 2013, in Liberty County,
                 Texas;
             2. The defendant . . . did then and there[] with the intent to
                 arouse or gratify the sexual desire of said defendant;
             3. Engage in sexual contact with [M.W.] by:
                 a. Touching the breast of [M.W.], and/or
                 b. Touching the genitals of [M.W.], and/or
                 c. Causing the said [M.W.] to touch the genitals of the
                    defendant, and/or
                 d. Causing [M.W.] to expose her genitals;
             4. [M.W.] was a child younger than 17 years of age and not the
                 spouse of the defendant.
             You must all agree on elements 1, 2, 3, and 4 listed above.
             If you all agree the State has proved each of the four elements
      listed above, beyond a reasonable doubt, you must find the defendant
      “guilty.”
             If you all agree the State has failed to prove, beyond a reasonable
      doubt, one or more of elements 1, 2, 3, or 4 listed above you must find
      the defendant “not guilty.”

      Under Texas law, jury unanimity is required in all criminal cases. Jourdan v.

State, 428 S.W.3d 86, 94 (Tex. Crim. App. 2014). A jury must reach a unanimous

verdict about a specific felony that the defendant committed, meaning the jury must

agree upon “a single and discrete incident that would constitute the commission of

the offense alleged.” See Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App.

2011) (quoting Stuhler v. State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007)).

                                         28
While jury unanimity generally is not required on the alternate modes or means of

commission, the jurors must all agree “that the defendant committed the same,

single, specific criminal act.” See Jourdan, 428 S.W.3d at 94; Ngo v. State, 175

S.W.3d 738, 745 (Tex. Crim. App. 2005).

      A defendant may choose to require the State to elect a specific criminal act

that it relies upon for conviction. See Cosio, 353 S.W.3d at 775. Even if the

defendant does not require an election, “guaranteeing unanimity is ultimately the

responsibility of the trial judge[,]” and “[t]he trial judge is therefore obligated to

submit a charge that does not allow for the possibility of a non-unanimous verdict.”

Id. at 776.

      Haggard argues that the jury could have relied on separate acts of criminal

conduct, which constituted different offenses or separate units of prosecution, and

the jury instructions in the application paragraph for Count I and Count II that the

jurors must all agree that the State has proved each of the four elements beyond a

reasonable doubt did not rectify the error.

      That said, Haggard also concedes that for both Counts I and II his trial counsel

did not object to the charge and did not request the State to make an election as to

which acts they were proceeding on for conviction. Reversal for an unobjected-to

erroneous jury instruction is proper only if the error caused actual, egregious harm

                                         29
to the appellant, not merely theoretical harm. Arrington v. State, 451 S.W.3d 834,

840 (Tex. Crim. App. 2015); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1985) (op. on reh’g). Actual egregious harm is established if the jury charge

affected the very basis of the case, deprived the defendant of a valuable right, or

vitally affected a defensive theory. Arrington, 451 S.W.3d at 840; Almanza, 686

S.W.2d at 172. This analysis is fact-specific and is done on a case-by-case basis.

Arrington, 451 S.W.3d at 840 (citing Gelinas v. State, 398 S.W.3d 703, 710 (Tex.

Crim. App. 2013)). When assessing harm based on the particular facts of the case,

we consider (1) the entire jury charge, (2) the state of the evidence, including

contested issues and the weight of the probative evidence, (3) the parties’ arguments,

and (4) all other relevant information in the record. See id. (citing Almanza, 686

S.W.2d at 171). An appellate court will “inquire about the likelihood that the jury

would in fact have reached a non-unanimous verdict on the facts of the particular

case.” Jourdan, 428 S.W.3d at 98.

       Assuming without deciding that the jury charge permitted non-unanimous

verdicts on the evidence presented in the case, neither the parties nor the trial judge

compounded the alleged error by telling the jury that it did not have to be unanimous

regarding the specific instances of criminal conduct in rendering its verdicts. The

record indicates that M.W. testified that during the incident Haggard committed all

                                          30
the separate acts of criminal conduct alleged in the application paragraphs for Counts

I and II and as alleged in the indictment, and Haggard’s defense was that M.W. was

not credible. The jury was not persuaded that he did not commit the offenses or that

there was any reasonable doubt. On this record, it is logical to infer that the jury

unanimously agreed that Haggard committed all the separate instances of criminal

conduct alleged in Counts I and II during the incident. See Cosio, 353 S.W.3d at

777-78. We conclude that the Appellant has failed to demonstrate that any error

regarding unanimity caused actual egregious harm to Appellant. See Arrington, 451

S.W.3d at 845. We overrule issues four and five.

                                    Punishment

      In issue six, Haggard argues his punishment in Count II is void. Specifically,

Haggard asserts that his twenty-five-year sentence for indecency with a child

exceeds the maximum allowed by the Legislature. Despite Haggard’s contention on

appeal otherwise, the jury charge for Count II tasked the jury with finding Haggard

not guilty or guilty of the felony offense of Indecency with a Child by Sexual Contact

as charged in Count II of the indictment but did not task the jury to find Haggard not

guilty or guilty of the offense of Indecency with a Child by Exposure. Haggard did

not object to the jury charge. As to Count II, the jury found Haggard guilty of

indecency with a child by contact. Haggard stipulated that he was the same person

                                         31
convicted in the punishment enhancement allegations, and the trial court assessed

punishment at twenty-five years in prison to run consecutively with the sentence in

Count I. The twenty-five-year sentence was within the statutory range. See Tex.

Penal Code Ann. §§ 12.32 (West 2019) (first-degree-felony punishment range is

imprisonment for life or for any term not more than 99 years or less than 5 years),

12.42(b) (West 2019) (enhancement of second-degree felony to first-degree felony

if defendant has previous felony conviction), 21.11(d) (offense of indecency with a

child by contact is a second-degree felony). We overrule issue six.

                            Sufficiency of the Evidence

      In issue seven, Haggard challenges the sufficiency of the evidence supporting

the convictions in Count I and Count II. According to Haggard, M.W.’s testimony

was not credible, and she was impeached with prior statements as to the details of

the alleged offenses.

      In reviewing the legal sufficiency of the evidence to determine whether the

State proved the elements of the offense beyond a reasonable doubt, we apply the

Jackson v. Virginia standard. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim.

App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Under that

standard, a reviewing court must consider all the evidence in the light most favorable

to the verdict and determine whether a rational justification exists for the jury’s

                                         32
finding of guilt beyond a reasonable doubt. Id. at 902; see also Jackson, 443 U.S. at

319. “A jury may accept one version of the facts and reject another, and it may reject

any part of a witness’s testimony.” Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim.

App. 2018). As the trier of fact, the jury is the sole judge of the weight and credibility

of the witnesses’ testimony, and on appeal we must give deference to the jury’s

determinations. Brooks, 323 S.W.3d at 899, 905-06. If the record contains

conflicting inferences, we must presume the jury resolved such facts in favor of the

verdict and defer to that resolution. Id. at 899 n.13 (citing Jackson, 443 U.S. at 326).

On appeal, we serve only to ensure the jury reached a rational verdict, and we may

not substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556,

562 (Tex. Crim. App. 2000). In our review, we consider both direct and

circumstantial evidence and all reasonable inferences that may be drawn from the

evidence. Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009); Hooper

v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In indecency and sexual assault

cases involving a child, the testimony of a child victim alone is sufficient to support

a conviction. See Tex. Code Crim. Proc. Ann. art. 38.07(b)(1); Garcia, 563 S.W.2d

at 928 (sexual assault of a child); Jones, 428 S.W.3d at 169-70 (indecency with a

child). The State has no burden to produce any corroborating or physical evidence.

Martines v. State, 371 S.W.3d 232, 240 (Tex. App.—Houston [1st Dist.] 2011, no

                                           33
pet.). The appellate court views the sufficiency of the evidence against a

hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997).

       A person commits the offense of sexual assault of a child if the person

knowingly (1) causes the penetration of the anus or sexual organ of a child by any

means; (2) causes the penetration of the mouth of a child by the sexual organ of the

actor; (3) causes the sexual organ of a child to contact or penetrate the mouth, anus,

or sexual organ of another person, including the actor; (4) causes the anus of a child

to contact the mouth, anus, or sexual organ of another person, including the actor; or

(5) causes the mouth of a child to contact the anus or sexual organ of another person,

including the actor. See Tex. Penal Code Ann. § 22.011(a)(2). “‘Child’” means a

person younger than 17 years of age.” Id. § 22.011(c)(1).

       To establish the offense of indecency with a child by contact, the State had to

prove that Appellant engaged in sexual contact with M.W., a child younger than

seventeen years of age. See Tex. Penal Code Ann. § 21.11(a)(1). Section 21.11’s

definition of “sexual contact” includes acts, if committed with the intent to arouse

or gratify the sexual desire of any person, of “any touching by a person, including

touching through clothing, of the . . . breast . . . of a child[.]” See id. § 21.11(c)(1).



                                            34
      M.W. testified that on October 5, 2013, when she was fifteen years old,

Haggard caused her sexual organ to contact or penetrate his mouth, he contacted or

penetrated her sexual organ without her consent, he penetrated her sex organ with

his finger, he caused her to contact his sex organ, he touched her breast with a part

of his body, he touched her genitals with a part of his body, he caused her to touch

his genitals, and he caused her to expose her genitals to him. M.W. testified that

Haggard’s actions were done to make him sexually aroused. M.W.’s testimony alone

was sufficient to support the convictions. See Tex. Code Crim. Proc. Ann. art.

38.07(b)(1); Garcia, 563 S.W.2d at 928 (sexual assault of a child); Jones, 428

S.W.3d at 169-70 (indecency with a child). The jury also heard Smith’s expert

testimony that using newer and more advanced testing with STRmix probabilistic

genotyping software, the profile obtained from the swab from M.W.’s breast is “219

quadrillion times more likely if the DNA came from [M.W.] and James Haggard

than if the DNA came from [M.W.] and one unrelated unknown individual.”

      Viewing all the evidence in the light most favorable to the verdict, we

conclude that a rational jury could have found the essential elements of the charged

offenses beyond a reasonable doubt. See Jackson, 443 U.S. at 319. The jury was the

exclusive judge of the facts, the credibility of the witnesses, and the weight to be

given their testimony, and could have found M.W.’s testimony, as well as testimony

                                         35
of other witnesses credible and resolved any conflicting evidence in favor of the

verdict. See id.; Brooks, 323 S.W.3d at 899; see also Tex. Code Crim. Proc. Ann.

art. 38.07. We overrule Haggard’s challenge to the legal sufficiency of the evidence.

Having overruled all of Haggard’s appellate issues, we affirm the trial court’s

judgments.

      AFFIRMED.

                                                    _________________________
                                                         LEANNE JOHNSON
                                                              Justice

Submitted on April 17, 2019
Opinion Delivered May 29, 2019
Do Not Publish

Before Kreger, Horton and Johnson, JJ.




                                         36
