      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-05-00641-CR



                                     David Hoover, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
         NO. 3040865, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING



                             MEMORANDUM OPINION


               David Hoover appeals his conviction by a jury of the offense of indecency with a

child by contact. See Tex. Penal Code Ann. § 21.11 (West 2003). The trial court assessed

punishment at 35 years in the Institutional Division of the Texas Department of Criminal Justice.

In seven points of error, appellant complains that the trial court unduly restricted testimony regarding

the outcry witness’s bias and motive and otherwise improperly admitted evidence. We affirm the

judgment of conviction.


                                   FACTUAL BACKGROUND

               The State’s evidence at trial showed that appellant lived in the same apartment

complex as A.M., the complainant who was seven years old at the time of the incident, her six-year-

old brother, O.M., and their mother, D.M. In the early evening of March 24, 2004, because her stove

was not working, D.M. sent the children to a friend’s apartment to get dinner. At some point, A.M.
and O.M. encountered appellant, who invited them into his apartment. The children watched

television, and appellant offered them some beans to eat in the kitchen. A.M. testified that while she

was in the kitchen appellant touched her “middle part” under her clothing.

               D.M. testified that the children returned to her apartment with a man she did not

know. D.M. observed that the children’s pants were unzipped. Appellant asked her if she needed

any help fixing her car and if she was married. In her children’s presence, appellant told her, “You

have good kids.” He then left the apartment.

               Because the children seemed scared and “acted like they were in trouble,” D.M. asked

them what had happened. As A.M. began crying, she told her mother that the children had been in

the man’s apartment and that he had “pulled her pants down and was messing with her between her

legs.” D.M. reported the incident to the police that evening. Two weeks later, A.M. and O.M. were

interviewed at the Center for Child Protection by Cyndi Cantu, a forensic interviewer. A.M. told

Cantu that appellant had touched her on her “middle part” that she uses “to pee with.” D.M. and the

children later identified appellant in a photographic line-up.

               A defense witness who lived three doors away from appellant testified that he was

visiting with appellant on the evening in question. Appellant’s door was open and the children “just

came up to the apartment.” The neighbor testified that he saw the children, watched them the whole

time they were in the apartment, and never saw appellant touch either child.


                                            ANALYSIS

               Appellant contends that the trial court erred in (i) restricting cross-examination of

D.M., A.M.’s mother, who was the outcry witness, (ii) allowing the admission of inadmissible

                                                  2
hearsay and then refusing a limiting instruction, (iii) inadvertently allowing the playing of an

inadmissible portion of a videotaped statement, and (iv) allowing testimony by a witness “expressing

an opinion on the truthfulness of the complainant’s allegations.” We review a trial court’s decision

to admit or exclude evidence using an abuse of discretion standard. Mozon v. State, 991 S.W.2d

841, 846-47 (Tex. Crim. App. 1999); Montgomery v. State, 810 S.W.2d 372, 379-80

(Tex. Crim. App. 1990) (op. on reh’g).


Limitation on Cross-Examination

               In his first point of error, appellant asserts that his right to confront and cross-examine

witnesses under the Sixth Amendment of the Constitution was violated when the trial court unduly

restricted his cross-examination of D.M., the complainant’s mother and the State’s outcry witness.1

Specifically, appellant sought to cross-examine D.M. about her application to the Attorney General

for crime victim’s compensation and a subsequent request of the Attorney General’s office for a

refund of the money because D.M. had failed to provide receipts as required showing that the money

was used for moving expenses. Appellant sought to question D.M. and to offer documentary

evidence, including the written application for compensation and the Attorney General’s letter

request. He urged that the evidence was admissible to show bias or motive under Texas Rule of

Evidence 613. See Tex. R. Evid. 613. The State urged that the evidence was improper impeachment




       1
          Although the State urges that it “is not entirely clear that this claim was preserved for
appellate review,” we conclude that the parties were aware of the nature of the complaint and that
it was preserved. See Maynard v. State, 685 S.W.2d 60, 65 (Tex. Crim. App. 1985).

                                                   3
and inadmissible under Texas Rules of Evidence 608 and 609 because it was unadjudicated conduct.

See Tex. R. Evid. 608-09.

                 The Sixth Amendment guarantees the right of an accused in a criminal prosecution

to confront the witnesses against him. U.S. Const. amend. VI. “Confrontation means more than

being allowed to confront the witness physically.” Davis v. Alaska, 415 U.S. 308, 315 (1974). Its

fundamental purpose is to secure for the defendant the opportunity to cross-examine the accuser.

Id. at 315-16.

                 Both rules 608 and 613(b) address impeachment of witnesses. Tex. R. Evid.

608, 613(b). Rule 608 allows the credibility of a witness to be attacked or supported in the form of

opinion or reputation testimony only by reference to the witness’s character for truthfulness

or untruthfulness and only after the character of the witness for truthfulness has been attacked.

Tex. R. Evid. 608(a). Rule 608(b) expressly bars impeaching a witness’s general character

for truthfulness with specific instances of conduct other than conviction of a crime as provided

in rule 609. Tex. R. Evid. 608(b). Nor may specific instances of conduct be proved by extrinsic

evidence. Id.

                 In contrast, rule 613(b) permits impeaching a witness by “proof of circumstances or

statements showing bias or interest” on the part of the witness. Tex. R. Evid. 613(b). Unlike rule

608(b), rule 613(b) does not expressly bar the use of specific instances of conduct to show bias or

interest. Compare Tex. R. Evid. 608(b), with Tex. R. Evid. 613(b). Rule 608 does not bar evidence

of specific acts not resulting in conviction as an impeachment device in all instances. It proscribes

such proof only when offered for a particular purpose—to establish a witness’s character for



                                                  4
veracity—so the jury may infer that he is more or less likely to be testifying truthfully. Specific acts

may, however, be proved for other purposes. For example, a witness’s acts may reveal a bias toward

or against one of the litigants. 1 Steven Goode et al., Texas Practice: Guide to the Texas Rules

of Evidence: Civil and Criminal § 608.1 (3d ed. 2002). Rule 608 does not address attempts to

impeach a witness through bias. Id. (citing Dixon v. State, 2 S.W.3d 263, 271 (Tex. Crim. App.

1999) (op. on reh’g)).

                Thus, rule 608 addresses a witness’s general character for truthfulness and rule 613(b)

addresses a witness’s trustworthiness in the particular case because of some bias or interest. Unlike

attacks on a witness’s character for truthtelling, bias or interest may arise when the witness has a

financial stake in the outcome of the case. E.g., Cox v. State, 523 S.W.2d 695, 700 (Tex. Crim. App.

1975) (admitting evidence that prosecution witness filed civil action against accused); Sterns v. State,

862 S.W.2d 687, 690 (Tex. App.—Tyler 1993, no pet.) (allowing testimony that prosecution witness

was informant who was paid fifty dollars per case).

                In a hearing outside the presence of the jury, appellant sought to show that D.M.

applied for and received benefits from the Crime Victims’ Compensation Program of the Texas

Attorney General’s Office. He argued that the application, a victim impact statement, and a letter

requesting repayment were relevant to show that D.M. sought financial gain as a consequence of the

incident. Appellant sought to show that D.M. submitted a victim impact statement containing a false




                                                   5
statement that she was evicted because the apartment management believed appellant to be innocent.

At the hearing, D.M. admitted that she was evicted for nonpayment of rent.2

               At the conclusion of the hearing, the trial court concluded that the evidence had

negligible probative value and allowed appellant to inquire only whether D.M. “made a claim to

crime victim’s compensation as a result of this prosecution and has she received money.” The court

excluded the “extraneous letters” and “what is going on behind it.” On cross-examination, D.M.

then testified that she made a claim for victim compensation based on the facts of the case and that

she sought money so she could move: “I didn’t know they was going to give you money like that.

I just know they would help you move. That’s all I know.” Appellant argues that false statements

given in connection with an application for victim compensation subjects the applicant to criminal

prosecution for perjury.

               The trial court did not abuse its discretion in excluding a portion of the proffered

evidence. There was no showing that the validity of D.M.’s claim hinged upon the pursuit or

outcome of the prosecution. D.M. evidently learned of and filed an application after she reported

the incident to law enforcement. She testified that she “got the paperwork from the advocacy center”

where A.M. gave her videotaped statement. The benefits were paid to D.M. a year before trial. The

proffered evidence does not show a tendency to lie, and it is only marginally probative on the issue

of bias or motive. Moreover, the record reflects that D.M. was effectively impeached because she

was incarcerated at the time of trial serving a sentence for forgery and she had given custody of her




       2
        The assistant manager of the apartment complex also testified at trial that D.M. was evicted
for nonpayment of rent.

                                                 6
children to a relative. We conclude that the scope of permissible cross-examination was appropriate

because the degree of possible relevance of the evidence as presented was so low as to be within the

“zone of reasonable disagreement,” and we thus decline to find that the trial court abused its

discretion by excluding the testimony.

               Assuming the trial court erred by refusing to permit appellant to cross-examine D.M.

concerning the application, we are satisfied that any error was harmless. See Delaware v. Van

Arsdall, 475 U.S. 673, 684 (1986). D.M. admitted before the jury that she made the claim in order

to move from the complex, that she had not made rent payments on time, that an eviction lawsuit had

been filed against her, that she had filed a civil suit against the apartment complex based on

allegations of sexual abuse, and that she was incarcerated at the time of trial for forgery. There is

no evidence that she influenced her daughter’s testimony or pressured either child to fabricate

allegations. We overrule appellant’s first point of error.


Prior Consistent Statements

               In his second, third and fourth points of error, appellant claims the trial court erred

in allowing Cyndi Cantu, a forensic interviewer with the Center for Child Protection, to testify to

prior consistent statements made by the complainant in her videotaped interview and that the

trial court erred in failing to give a limiting instruction and a further instruction in the charge.

Because Cantu was not the outcry witness, appellant objected to her testimony about A.M.’s prior

consistent statements.

               The controversy arises from discrepancies in A.M.’s testimony, which provides

context for Cantu’s testimony. At trial, A.M. testified that the assault occurred as she was standing

                                                 7
in appellant’s kitchen. She testified that she was wearing shorts, that the shorts “stayed up,” and

that appellant touched her “middle part” under her panties for a “short time.” On cross-examination,

defense counsel elicited testimony that A.M. had stated during her interview with Cantu that

the incident happened at her mother’s house and that she was wearing “pants.” Defense counsel

played portions of A.M.’s videotaped interview. The following testimony then occurred during

questioning of A.M.:


       Q [Defense Counsel]:     Do you remember that you spoke with a lady named Cyndi
                                Cantu at the Children’s Advocacy Center?

       A [A.M.]:                Yes.

       Q [Defense Counsel]:     And you spoke to her about two weeks after this all was
                                supposed to have happened, right?

       A [A.M.]:                Yes.

       Q [Defense Counsel]:     Okay. And when you spoke to her, you told her that this all
                                happened at your mom’s house. Do you remember that?

       A [A.M.]:                No.

       Q [Defense Counsel]:     Do you remember that you made a videotape with her, and
                                she asked you, where did this all happen, and you told her
                                that it happened at your mom’s house? Do you remember
                                that? Let me ask you this, [A.M.]: Do you remember a
                                short time ago, right here in this courtroom, you just looked
                                at a videotape?

       A [A.M.]:                Yes.

       Q [Defense Counsel]:     And do you remember seeing that portion of the videotape
                                where you were talking with Ms. Cantu?

       A [A.M.]:                Yes.



                                                 8
Q [Defense Counsel]:   And do you remember telling her that it happened at your
                       mom’s house?

A [A.M.]:              Yes.

Q [Defense Counsel]:   Okay. So, that did happen. You did tell her that, right?
                       You saw that on the videotape?

A [A.M.]:              It didn’t happen at my mother’s house.

Q [Defense Counsel]:   It didn’t happen at your mother’s house?

A [A.M.]:              No.

Q [Defense Counsel]:   But you did tell Ms. Cantu that it happened at your mother’s
                       house, right? We looked at that together. Do you
                       remember that? Also, [A.M.], you told us that you were
                       wearing shorts when this was all supposed to have
                       happened. Do you remember telling the jury that?

A [A.M.]:              Yes.

Q [Defense Counsel]:   But you told Ms. Cantu that you were wearing pants. Do
                       you remember that? Do you remember looking at that on
                       the videotape?

A [A.M.]:              Yes.

Q [Defense Counsel]:   And what did you tell Ms. Cantu 13 days after this was
                       supposed to have happened? What did you tell her you
                       were wearing? [A.M.], you don’t have to think about it.
                       Just tell the jury what you saw.

A [A.M.]:              They were like pants, but they were short like shorts.

Q [Defense Counsel]:   So, you weren’t wearing pants; you were wearing shorts?

A [A.M.]:              Jean shorts, pants.

Q [Defense Counsel]:   You were wearing pants; is that right?




                                       9
After the court sustained the State’s objection that defense counsel was misstating A.M.’s testimony,

A.M. testified, “It was like these pants, but they didn’t pass my knees.” Defense counsel then

asked that “those portions of the videotape be published to the jury.” On redirect examination,

the prosecutor sought to play A.M.’s statement on the videotape “about how it happened in

the kitchen and she was standing up.” These portions of the videotaped interview were played

without objection.

               When the State then called Cantu to testify, the prosecutor sought to elicit A.M.’s

statements on the videotape that were inconsistent with her statements on cross-examination

pursuant to rule 801(e)(1)(B). See Tex. R. Evid. 801(e)(1)(B). Appellant objected that the

statements were inadmissible hearsay because Cantu was not an outcry witness who would be

permitted to relate the statements made to her. The court allowed Cantu to testify to prior consistent

statements made by A.M. Appellant requested that the court give a limiting instruction at the time

the testimony was elicited and again in the charge. The court agreed and then explained that because

appellant had not requested any instruction, she would give the instruction “straight from the book.”

Appellant then asked that the court give an instruction that the testimony was only to be used to rebut

a claim of motive and not for all purposes, and the court rejected the request.

               Cantu then testified about certain statements made by A.M. during the videotaped

conversation. Although Cantu testified to several prior statements that were inconsistent with those

elicited from A.M. by defense counsel, appellant objects only to the court’s admission of a single

statement that he contends was inadmissible. He complains that Cantu testified that A.M. had told




                                                  10
her—consistent with A.M.’s direct testimony—that appellant had touched her “middle part”

underneath her clothing when they were both standing in appellant’s kitchen.

               But the record is clear that the court allowed the State to elicit other

statements—inconsistent with those elicited on cross-examination and consistent with those elicited

on direct—to counter defense counsel’s effort to impeach A.M.’s testimony with selected portions

of the videotape. Thus, the court allowed the State to introduce Cantu’s testimony that A.M. told

her that appellant had touched her “middle part” underneath her clothing when they were both

standing in the kitchen of appellant’s apartment to counter a portion of the videotape reflecting that

A.M. was in her mother’s house when it happened.

               In Sauceda v. State, the defense sought to introduce the testimony of a

CPS caseworker who interviewed the victim about the alleged incident. 129 S.W.3d 116, 118

(Tex. Crim. App. 2004). The State argued that if such testimony were allowed, the State would be

entitled to introduce, in its entirety, a videotape of the interview. Id. at 118-19. Although the

videotape contained numerous references to uncharged offenses, the trial court ruled that the State

could introduce the entire tape into evidence if the caseworker testified, under the rule of optional

completeness. Id. at 118-19 & n.3 (citing Tex. R. Evid. 107). Because he did not wish to introduce

the video itself, defense counsel did not call the caseworker to testify, and appellant was convicted.

After the court of appeals upheld the conviction, the court of criminal appeals reversed, holding that

the admission of testimony regarding selected portions of the videotape would not “open the door”

to the admission of the entire videotape. Id. at 121.




                                                 11
               The court found, however, that the contents of the tape were subject to the rule of

optional completeness, and that the rule is implicated when a party attempts to have a portion of a

taped statement “given in evidence.” Id. at 122 (citing Tex. R. Evid. 107). The adverse party is then

entitled to introduce into evidence the remaining parts of the “act, declaration, conversation, writing

or recorded statement” or any related “act, declaration, conversation, writing or recorded statement”

necessary to a full understanding of the evidence. Washington v. State, 856 S.W.2d 184, 186

(Tex. Crim. App. 1993). In Washington, the court of criminal appeals held that the admission of the

tape was error because no mention of the tape was made during cross-examination and the defense

made no attempt to introduce the tape’s contents into evidence. Id. In Sauceda, the existence of the

videotape was mentioned frequently during cross-examination. 129 S.W.3d at 122.

               For an omitted portion of a statement to be admitted, the plain language of rule 107

specifies that it must be “on the same subject” and must be “necessary to make it fully understood

or to explain the same.” Tex. R. Evid. 107. Thus, so long as the portions of the statement offered

by the State were on the same subject introduced by the defendant, and were offered for the purpose

of explaining the whole conversation on the same subject, the statements were properly admitted.

Sauceda, 129 S.W.3d at 123.

               Addressing A.M.’s comment that she was in her mother’s house when the incident

happened, Cantu explained, “The way I understood it was that she was telling me how the event

started. She started off at her house and then ended up at his house.” Cantu continued:


       [A]s she went on to tell me, it became clear that she was starting off the event by
       being at her mother’s house, and then moving to the guy’s house, as she called him,



                                                  12
       or the white guy, as she called him, and that that was actually where the touching
       happened.

       And so I think because of the hesitancies, the nervousness or trauma that she was
       having at that time, that was what was making it a little confusing for her to talk
       about it. But I think she was very clear by the end of the interview about what
       happened and where it happened.


Because selective portions of the contents of the videotaped interview were relevant to the portions

of the interview offered by the defense, the challenged evidence was admissible on the ground of

optional completeness to avoid leaving a false impression as to A.M.’s statements. See Tex. R. Evid.

107. Thus, upon a showing by the State that the information on the videotape was offered in

response to the portions introduced by the defense and was necessary to make A.M.’s testimony fully

understood, the evidence was admissible. See Sauceda, 129 S.W.3d at 124. Moreover, because the

evidence was admissible under rule 107 for all purposes, no limiting instruction was necessary at the

time the evidence was introduced or in the charge. Appellant’s second, third, and fourth points of

error are overruled.


Inadvertent Playing of Inadmissible Portion of Videotaped Statement

               In his fifth and sixth points, appellant contends that the trial court erroneously denied

his motions for mistrial when the judge inadvertently played a portion of a videotaped statement of

A.M.’s brother, O.M., that was inadmissible. He urges that the segment inadvertently played was not

relevant and included reference to an extraneous offense. The State responds that the excerpt was

not inadmissible and, further, that the trial court did not abuse its discretion in denying the motions.




                                                  13
               We review a trial court’s denial of a motion for mistrial under an abuse of discretion

standard. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004); Trevino v. State, 991 S.W.2d

849, 851 (Tex. Crim. App. 1999). A mistrial is appropriate for “a narrow class of highly prejudicial

and incurable errors” and is used to terminate a trial proceeding when the error is so prejudicial that

“expenditure of further time and expense would be wasteful and futile.” Wood v. State, 18 S.W.3d

642, 648 (Tex. Crim. App. 2000). The determination of whether a given error necessitates a mistrial

must be made by examining the particular facts of the case. Ladd v. State, 3 S.W.3d 547, 567

(Tex. Crim. App. 1999).

               Appellant objected to a portion of the videotaped interview of O.M. after it was

played for the jury. Although the record is unclear, an excerpt that referred to appellant touching

“O.M. on the bottom” was evidently played during O.M.’s testimony and at the conclusion of the

trial when the State sought to reopen the evidence to play the tape. In both instances, the trial court

denied appellant’s motion for a mistrial after instructing the jury to disregard the excerpt.

               The indictment recited the instance of abuse against A.M. alone. In its notice of

intent to introduce evidence of extraneous conduct, the State listed nineteen extraneous acts it sought

to introduce at trial, including the following:


       On or about March 24, 2004, in Travis County, Texas, the defendant committed the
       offense of indecency with a child by sexual contact against [O.M.] by touching
       [O.M.] on his “behind,” over the pants, with the defendant’s hand.

       On or about March 24, 2004, in Travis County, Texas, the defendant committed the
       offense of indecency with a child by sexual contact against [O.M.] by touching
       [O.M.] on his penis.




                                                  14
When O.M. testified, defense counsel objected to the introduction of any evidence of abuse of O.M.

The prosecutor agreed not to elicit the testimony at that time. The court agreed that “[i]t’s not

coming out right now” and directed the State “not to talk about that.”

               Prior to O.M.’s testimony two days later, at the request of the parties, the court played

three segments of O.M.’s videotaped interview and advised the jury that one—the first—was

presented by the defense and the next two by the State. The record shows that, as the tape evidently

began playing the second segment as offered by the State, defense counsel objected to a segment

offered by the State as a prior consistent statement and asked that the videotape be stopped. The

following colloquy then occurred at the bench:


       [Defense Counsel]:      I object to the showing of that last portion. That had
                               absolutely no relevance to this case, and it was an extraneous
                               offense. It talked about [O.M.]’s bottom being touched.

       [Court]:                Did you touch your sister?

       [Defense Counsel]:      What I heard was that he touched my bottom. Where were
                               you when he touched your bottom?

       [Court]:                On the second one?

       [Defense Counsel]:      Right, the second one you just showed.

       [Court]:                Okay.

       [Prosecutor]:           The portions I requested to be played—

       [Court]:                Your objection is noted. It’s overruled at this point. If that
                               was played, it was inadvertent on the part of the Court. I
                               was—just so the record will reflect, I was the one that was in
                               charge of the videotape, and I’m trying to get the numbers
                               right. It’s very difficult because I’m working two different



                                                  15
                               remotes. Your objection is noted. If that—it’s sustained if
                               that came out. You can ask for a mistrial.

       [Defense Counsel]:      I’m asking for a mistrial.

       [Court]:                It will be denied at this point.

       [Defense Counsel]:      And I’d ask that the jury be instructed to disregard that
                               portion.

       [Court]:                I don’t know if they heard that.

       [Defense Counsel]:      Of course they heard it.

       [Court]:                It might bring more attention to it. You want me to say, the
                               only evidence you need to consider is the first snippet at this
                               point? Okay.


The court then gave a limiting instruction that “the only evidence that you are to consider at this

point is the first portion of the videotape that I played back to you that was presented by the defense,

and that’s at this point.” Defense counsel then offered that portion into evidence and inquired of

O.M. about his statement on the videotape that his sister was wearing a dress on the day in question.

               As the trial drew to a close, the State moved to reopen the evidence to “show prior

consistent statements of [O.M.]” After the court overruled defense counsel’s objection to the State’s

reopening, two tape segments were played. After the excerpts were played, defense counsel objected

that the excerpt about “contact with [O.M.]’s bottom” was again inadvertently played. He asked the

court to advise the jury to disregard that portion and requested a mistrial.3 The court denied the




       3
         The record shows that the two motions for mistrial relate to the same segment of the tape,
which makes reference, in some manner not fully reflected in the record, to appellant touching O.M.
on the “bottom.”

                                                  16
motion for mistrial, but gave an instruction: “With regard to the first playback, the Court instructs

you that you are only to consider the portion that will be admitted into evidence. If you need to see

it again, it’s the portion where [O.M.] is asked about his sister on the middle part and where it was.”

The State then offered the exhibits into evidence, defense counsel did not further object, and the

exhibits were admitted.

               After each playing of the excerpt, the trial court granted appellant’s request for a

curative instruction. Appellant did not object to the curative instruction given by the trial court. It

is not clear from the record whether the parties conferred sufficiently with the court to avoid the

playing of the excerpt that even appellant characterizes as inadvertent and an accident. Although

appellant contends that the touching constituted an extraneous offense and was therefore

inadmissible, the State asserted that the evidence had “become relevant” with O.M.’s testimony. But

the record is not clear precisely what questions and answers are the subject of the objection. And

the judge had some difficulty in deciphering what was said on the recording. Although the judge

suggested that the jury may not have heard “that,” defense counsel responded that “of course they

heard it.” The precise language objected to never appears in the record before us on appeal or in

appellant’s brief except to the extent we have referred to it here.

               Assuming O.M.’s complained-of testimony about the contact was a reference to an

extraneous offense, the trial court’s instruction to disregard was sufficient to cure any harm or

prejudice from this event. See Marshall v. State, No. AP-75,048, 2006 Tex. Crim. App. LEXIS

2444, at *24 (Tex. Crim. App. Dec. 20, 2006) (citing Young v. State, 137 S.W.2d 65, 69-70

(Tex. Crim. App. 2004) (mistrial not required where prejudice is curable by instruction to disregard);



                                                  17
Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (instruction to disregard usually cures

prejudice from reference to extraneous offense)). Upon reviewing the record, we find no indication

that the excerpt inflamed the jury with information regarding other allegations against appellant.

Therefore, we conclude that the trial court’s instruction to disregard cured any possible prejudicial

effect of the witness’s testimony. We overrule appellant’s fifth and sixth points of error.


Witness’s Opinion Testimony

               In his seventh point of error, appellant contends that the trial court erred in allowing

the witness Cantu to directly express an opinion on the truthfulness of A.M.’s allegations and that

expert witnesses are barred from presenting such testimony.

               When A.M. gave conflicting testimony in her interview with Cantu, Cantu testified

that she thought A.M. was nervous and traumatized. After Cantu testified that at the beginning of

the interview A.M. said the incident happened at “my mom’s house” and the “white guy” was

“outside,” the following exchange occurred:


       [Prosecutor]:           That doesn’t seem to make sense, does it?

       [Defense Counsel]:      Objection. That snippet of the videotape that the jury is going
                               to be offered speaks for itself. I’m going to object to any
                               reinterpretation of that.

       [Court]:                Overruled.

       [Prosecutor]:           So when she’s saying to you in the very beginning that the
                               touching took place at her house, but she was inside and he
                               was outside her house, how did you—based on your
                               conversation with [A.M.] and your training and experience in
                               this field, how did you interpret that give and take?



                                                 18
After the court overruled defense counsel’s objection that Cantu was “telling the jury how to

interpret the evidence,” Cantu testified: “The way I understood it was that she was telling me how

the event started. She started off at her house and then ended up at his house.” Without objection,

Cantu then testified that A.M. exhibited confusion about the sequence of events:


       I think that in the beginning, as we talked about, she seemed a little confused. And
       I was confused about where the actual touching event happened. But then as she
       went on to tell me, it became clear that she was starting off the event by being at her
       mother’s house, and then moving to the guy’s house, as she called him, or the white
       guy, as she called him, and that that was actually where the touching happened. And
       so I think because of the hesitancies, the nervousness or trauma that she was having
       at that time, that was what was making it a little confusing for her to talk about it.
       But I think she was very clear by the end of the interview about what happened and
       where it happened.


On cross-examination, the following testimony occurred as defense counsel asked Cantu about her

role of “gathering information” in the investigatory stage of the case:


       Q [Defense Counsel]:     Well, one possibility is that the child was making a false
                                accusation, isn’t it?

       A [Cantu]:               That’s always possible on any case.

       Q [Defense Counsel]:     So when you’re saying that you’re trying to be impartial,
                                how were you impartial to Mr. Hoover?

       A [Cantu]:               My job, again, is to collect information from the child. I
                                can’t suggest information to the child or give them any
                                information. I just ask them questions so they tell me what
                                they know.

       Q [Defense Counsel]:     Well, did you look for any evidence that the child was
                                giving you a false allegation?

       A [Cantu]:               Again, my job is not to collect evidence on the entire case.

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       Q [Defense Counsel]:         I’m asking: Did you collect any evidence from the child that
                                    would suggest that she was making a false allegation?

       A [Cantu]:                   No, I did not.


Cantu acknowledged that she would not know if A.M. fabricated her testimony:


       Q [Defense Counsel]:         And so if [A.M.] made this up, you wouldn’t know the
                                    difference?

       A [Cantu]:                   What I’m doing is collecting information and basing that
                                    information—you know, what I’ve done is reflected what
                                    she’s told me and her emotions.

       Q [Defense Counsel]:         If [A.M.] made this up, you wouldn’t know the difference,
                                    would you?

       A [Cantu]:                   No. I wouldn’t know from—because I didn’t do the
                                    complete investigation.

       Q [Defense Counsel]:         If [A.M.] made this up, you wouldn’t know the difference?

       A [Cantu]:                   No, I wouldn’t.


Cantu then testified on redirect:


       Q [Prosecutor]:              Ma’am, based on your training and experience and based on
                                    your interview of [A.M.], do you possess an opinion on
                                    whether [A.M.] was telling you the truth or not?

       A [Cantu]:                   Based on what I saw, she seemed to be very traumatized by
                                    an event. And she described an event that could have given
                                    her that trauma for her.

       Q [Prosecutor]:              So the trauma that you observed in her was consistent with
                                    what she described happening to her at the hands of the
                                    defendant?



                                                      20
       A [Cantu]:                Yes.

               Appellant urges that this last excerpt constituted impermissible testimony concerning

A.M.’s credibility and the truth of her allegations. Although Cantu was asked her opinion on

whether A.M. was telling the truth, she responded with her observations of A.M.’s emotional state.

This evidence is admissible to meet or explain her testimony given in response to defense

questioning. Any error in the admission of the complained-of evidence, however, was harmless

because the portions of the record set out above show that appellant brought out essentially the same

evidence before it was elicited by the State or that essentially the same evidence was brought out

without objection. See Marshall, 2006 Tex. Crim. App. LEXIS 2444, at *30 (citing Leday v. State,

983 S.W.2d 713, 716-18 (Tex. Crim. App. 1998) (improper admission of evidence is harmless when

other such evidence is admitted without objection)). We overrule appellant’s seventh point of error.


                                         CONCLUSION

               Having overruled appellant’s points of error, we affirm the judgment of conviction.




                                              __________________________________________

                                              Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Pemberton

Affirmed

Filed: February 27, 2007

Do Not Publish

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