Affirmed and Memorandum Opinion filed June 30, 2016.




                                       In The

                      Fourteenth Court of Appeals

                                NO. 14-14-00796-CR

                    DAVID MICHAEL WATSON, Appellant
                                          V.

                        THE STATE OF TEXAS, Appellee

                     On Appeal from the 400th District Court
                             Fort Bend County, Texas
                      Trial Court Cause No. 12-DCR-059381

                   MEMORANDUM OPINION
      Appellant was charged by indictment with one count of indecency with a child
by contact. See Act of June 13, 2001, 77th Leg., R.S., ch. 739, § 3, 2001 Tex. Gen.
Laws 1463, 1464 (current version at Tex. Penal Code Ann. § 21.11 (West 2015)).
The jury found appellant guilty and assessed punishment at ten years’ confinement
and a fine of two thousand dollars. In his sole issue on appeal, appellant contends the
trial court abused its discretion when it limited the scope of appellant’s proffered
expert testimony during the guilt/innocence phase of trial. We affirm.
                    I.      FACTUAL AND PROCEDURAL BACKGROUND

       Appellant was accused of touching his granddaughter’s genitals with his hand.
Appellant’s granddaughter, the complainant, testified “when [appellant] came down
to visit or when we went to visit,” appellant touched her “under the clothes, but over
my panties.” She testified that she would sit on appellant’s lap when she was “[n]ine,
ten, eight, somewhere around there” and he would touch “my vagina.”                             The
complainant was thirteen at the time of her outcry and sixteen at the time of trial.

       During the guilt/innocence phase of trial, appellant sought to introduce the
testimony of Dr. Jerome Brown, a clinical psychologist, regarding (1) the
phenomenon of “confabulation,”1 (2) the general nature of memory deterioration over
time, and (3) the likely behavioral manifestations of a child who has been sexually
abused. The State objected. The trial court held a hearing outside the presence of the
jury to determine the admissibility of Dr. Brown’s proffered testimony. During the
hearing, Dr. Brown testified that he is a clinical psychologist and that he “had worked
with hundreds of sex offenders and victims [since 1982].” The State and appellant
then took turns questioning Dr. Brown about his expertise and the scientific
principles subject to his testimony. At the conclusion of the hearing, the trial court
accepted Dr. Brown as a qualified psychologist, allowed Dr. Brown to give expert
testimony on confabulation, but excluded his testimony regarding memory
deterioration and the likely behavioral manifestations in a sexually abused child.

       As noted above, the jury found appellant guilty and sentenced him to a term of
ten years’ confinement and assessed a two thousand dollar fine.


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         According to Dr. Brown, “[c]onfabulation is a disturbance of memory. It involves the
creation and insertion into a past memory of new material, of material that actually didn’t exist or
didn’t occur at the time of the original memory but becomes part of the person’s memory of what
happened. . . This is not like lying or misperceiving something, but the person actually believes and
has a memory about something that happened that didn’t really occur.”

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                                   II.    ANALYSIS

      In his sole issue on appeal, appellant argues the trial court erred in limiting the
scope of his expert’s testimony to confabulation. Specifically, appellant contends Dr.
Brown’s proffered testimony about           memory deterioration       and behavioral
manifestations in sexually abused children was both relevant and reliable.

      Assuming, without deciding, the trial court abused its discretion in excluding
Dr. Brown’s testimony regarding general memory deterioration and likely behavioral
manifestations in sexually abused children, we conclude appellant did not suffer
harm. In a criminal case, harm is evaluated under Texas Rule of Appellate Procedure
44.2. Rule 44.2(a) addresses constitutional error while Rule 44.2(b) addresses non-
constitutional error. See Tex. R. App. P. 44.2(a), (b).

      The erroneous exclusion of evidence in violation of the Texas Rules of
Evidence generally is non-constitutional error and is reviewed under Rule 44.2(b).
See Tillman v. State, 376 S.W.3d 188, 198 (Tex. App.—Houston [14th Dist.] 2012,
no pet.) (citing Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim. App. 2007)).
However, improper exclusion of evidence may establish a constitutional violation in
two circumstances: (1) when a state evidentiary rule categorically and arbitrarily
prohibits the defendant from offering relevant evidence that is vital to his defense; or
(2) when a trial court erroneously excludes relevant evidence that is a vital portion of
the case and the exclusion effectively precludes the defendant from presenting a
defense. Id. at 198.

      The trial court’s exclusion of the evidence in this case was not grounded on any
evidentiary rule prohibiting the admission of the testimony appellant offered.
Therefore, we are concerned only with the second category and must determine
whether the exclusion of the evidence effectively prevented appellant from presenting



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a meaningful defense. See Ray v. State, 178 S.W.3d 833, 835 (Tex. Crim. App. 2005)
(citing Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002)).

  1. Memory Deterioration

     a. The Error Is Not Constitutional

      Erroneous evidentiary rulings rarely rise to the level of denying a fundamental
constitutional right to present a meaningful defense. Wiley v. State, 74 S.W.3d 399,
405 (Tex. Crim. App. 2002) (citing Potier, 68 S.W.3d at 663). Appellant did not
argue in his brief that the exclusion of Dr. Brown’s testimony effectively precluded
appellant from presenting a meaningful defense.       However, even assuming the
excluded evidence was meant to further appellant’s defensive theory that the
complainant was misremembering certain events, we conclude appellant was not
effectively prevented from presenting his defense.

      First, through his own testimony, appellant was able to present to the jury that
he did not touch the complainant inappropriately. He gave his own account of the
facts. Appellant admitted that his grandchildren often sat on his leg, but denied ever
touching the complainant inappropriately. The jury, as the judge of credibility, was
entitled to believe or disbelieve any inconsistencies in the evidence. See Isassi v.
State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

      Second, appellant was able to challenge the reliability of the complainant’s
memory and testimony through cross-examination. See Tillman, 376 S.W.3d at 198–
99 (because appellant was able to challenge reliability of police identification
procedures through cross-examination of eyewitnesses and officer, and attacked their
reliability during closing argument, he was not effectively prevented from presenting
his defense when the trial court excluded his expert witness). Therefore, we conclude
that the excluded evidence would have furthered appellant’s defensive theory
regarding the complainant’s memory only incrementally. See Walters, 247 S.W.3d at
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222; see also Ray, 178 S.W.3d at 836. For example, during appellant’s cross-
examination of the complainant, he challenged the reliability of her memory:

      Q: Okay. Let’s talk about the way you remember things. Have you
      ever made a mistake remembering something, thought about something
      one way, but then later you found out that it didn’t happen quite that
      way?
      A: Yes.
      Q: Can you give me a real example about that?
      A: Like when I thought [the inappropriate touching] was on the long
      couch when it was actually on the short one.
      Q: Okay. We didn’t have to talk about this, but I suppose that would be
      an example. Anything else?
      A: Not that I remember.
      Q: That’s the first time that’s ever happened, that you remember?
      A: No, it’s not the first. It’s just I don’t remember.
      Additionally, appellant challenged the reliability of the complainant’s memory
during closing argument. He argued the complainant’s story “changed dramatically”
and had “mass inconsistencies.”

      Where the excluded evidence would only further the defendant’s defensive
theory incrementally, the error is not of a constitutional dimension. Walters, 247
S.W.3d at 222; Ray, 178 S.W.3d at 836. Therefore, the alleged error in excluding Dr.
Brown’s testimony on this point was not constitutional, and the harm analysis is
governed by Rule 44.2(b). See Tillman, 376 S.W.3d at 199.




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     b. Appellant was not harmed

      Next, we consider whether the trial court’s alleged error in excluding the
memory deterioration evidence harmed appellant. A non-constitutional error that
does not affect substantial rights does not justify overturning the verdict. Potier, 68
S.W.3d at 666. A substantial right is affected when the error had a substantial and
injurious effect or influence in determining the jury’s verdict. Coble v. State, 330
S.W.3d 253, 280 (Tex. Crim. App. 2010). However, such non-constitutional error is
harmless when the improperly admitted evidence did not influence the jury or had but
a slight effect upon its deliberations. Id. In performing a harm analysis, we examine
the entire trial record and calculate, as much as possible, the probable impact of the
error upon the rest of the evidence. Id. We consider the overwhelming evidence
supporting the particular issue to which the erroneously admitted evidence was
directed. Id.; Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). In
doing so, we consider “everything in the record, including any testimony or physical
evidence admitted for the jury’s consideration, the nature of the evidence supporting
the verdict, the character of the alleged error and how it might be considered in
connection with other evidence in the case.” Motilla v. State, 78 S.W.3d 352, 357
(Tex. Crim. App. 2002) (quoting Morales, 32 S.W.3d at 867).

      Appellant’s substantial rights were not affected by the exclusion of the
evidence regarding memory deterioration. Dr. Brown was able to testify regarding
confabulation. The jury heard him explain that confabulation is a disturbance of
memory that involves the creation and insertion into a past memory of new material
that did not exist or occur at the time of the original memory. Instead, as Dr. Brown
explained, the new material becomes part of the person’s memory of what happened.
The jury also heard Dr. Brown highlight some of the adverse influences of leading
and repeated questions and pressure that could lead to memory distortion.


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      Q: Can certain events external to a person cause a person to have false
      memories?
      A: Yes.
      Q: How does that work?
      A: Well, there are several types of what we call adverse influences,
      adverse meaning influences that would distort or change the original
      memory. Suggestibility of suggestive situations is one type . . . Other
      types of adverse influence would be like leading questions, repeated
      questions, pressure-type situations that make - - that lead the person to
      feel some kind of pressure to create a new kind of memory, either to
      please the person questioning them or some other reason, or to bolster
      what they have reported in the past.
      ...
      Q: In the general population, and particularly in the population of
      children, does confabulation occur unaccompanied by other symptoms
      of mental illness?
      A: Yes. Sometimes, they are what we call unprovoked or unstim - -
      unstimulated confabulation, they just happen out of the blue, and
      sometimes they’re in response to some kind of provocation.
      Q: What kind of provocation?
      A: Well, again, different kind of trauma, different kinds of stress,
      different kinds of pressure can be put on the person to alter - - that might
      cause them to alter their memories.
      Q: If a person were repeatedly questioned about an event?
      A: That can do it.
      Q: Okay. If a person were made to tell the same story time after time,
      could that have an effect?

      A: Yes.

Dr. Brown testified that the younger the person is, the more susceptible he or she is to
the distortions of memory through adverse influences. The jury was free to consider
Dr. Brown’s testimony and evaluate any inconsistencies in the complainant’s
testimony. See Isassi, 330 S.W.3d at 638.


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          Based on our review of the record, we conclude that the exclusion of Dr.
Brown’s testimony on this point did not have a substantial and injurious effect or
influence in determining the jury’s verdict.         See Tillman, 376 S.W.3d at 202
(determining after remand that the exclusion of the expert’s testimony was harmless
error).

  2. Behavioral Manifestations

          For the reasons explained above, we conclude any error in excluding Dr.
Brown’s proffered testimony regarding the likely behavioral manifestations in
sexually abused children is non-constitutional error. Therefore, assuming the trial
court erred, we must determine whether such error affected appellant’s substantial
rights. See Potier, 68 S.W.3d at 666.

          Dr. Brown would have testified that there are common characteristics or
behavioral manifestations in sexually abused children. These characteristics, when
present, indicate red flags that a child may have been sexually abused. Among these
characteristics are a drop in academic performance, sleep disturbance, preoccupation
with sexual behavior, and withdrawal. However, Dr. Brown also conceded that some
sexually abused children do not display any of those characteristics or manifestations.

          Q: And you indicated that some of these symptoms or behavioral
          manifestations could be a drop in academic performance, sleep
          disturbance, preoccupation with sexual behavior - - I think you
          mentioned another one.
          A: Withdrawal.
          Q: Withdrawal. It’s also common in children who have been sexually
          abused not to have any of those symptoms, isn’t it?
          A: Yes.
          ...
          Q: So, the truth is there really is no way to characterize behaviors that
          are common to all children who have been sexually abused?

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      A: It can’t be used as like a yes or no. It’s not that precise.
      Q: As you said, your profession tries to educate the public for certain
      symptoms that might cause concern for further inquiry, but these
      symptoms that you’ve listed, if they are present, don’t show whether or
      not a child was sexually abused, do they?
      A: Right.

Dr. Brown’s proffered testimony regarding behavioral manifestations merely listed
several factors that may or may not indicate that a child has been sexually abused.
Although both the complainant and her mother testified that the complainant was
doing well in school, this fact does not indicate one way or another the likelihood that
the complainant was sexually abused.          Therefore, we cannot conclude that the
exclusion of Dr. Brown’s testimony would have had a substantial influence on the
jury’s verdict.

      After reviewing the record as a whole, we have a fair assurance that any
improperly excluded evidence did not influence the jury or had but a slight effect
upon the verdict. See Coble, 330 S.W.3d at 280. Therefore, assuming the trial court
erred when it excluded Dr. Brown’s testimony regarding memory deterioration and
behavioral manifestations in sexually abused children, we conclude the error was
harmless. Accordingly, we overrule appellant’s sole issue and affirm the trial court’s
judgment.




                                        /s/       John Donovan
                                                  Justice



Panel consists of Chief Justice Frost and Justices Christopher and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).


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