                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-11-00277-CR

BOBBY JOE BUCKNER,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2009-385-C2


                         MEMORANDUM OPINION


      A jury convicted Appellant Bobby Joe Buckner of aggravated sexual assault of a

child, and the trial court assessed his punishment at fifty years’ imprisonment. This

appeal ensued.

                             Sufficiency of the Evidence

      In his first issue, Buckner contends that the evidence is insufficient to prove that

he committed an aggravated sexual assault.

      The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:

                 In determining whether the evidence is legally sufficient to support
          a conviction, a reviewing court must consider all of the evidence in the
          light most favorable to the verdict and determine whether, based on that
          evidence and reasonable inferences therefrom, a rational fact finder could
          have found the essential elements of the crime beyond a reasonable doubt.
          Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
          13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
          responsibility of the trier of fact fairly to resolve conflicts in the testimony,
          to weigh the evidence, and to draw reasonable inferences from basic facts
          to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point
          directly and independently to the guilt of the appellant, as long as the
          cumulative force of all the incriminating circumstances is sufficient to
          support the conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), cert. denied, 132 S.Ct. 2712

(2012).

          The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326. Further,

direct and circumstantial evidence are treated equally: "Circumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt." Hooper, 214 S.W.3d at 13. Finally, it

is well established that the factfinder is entitled to judge the credibility of witnesses and

can choose to believe all, some, or none of the testimony presented by the parties.

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

          As limited by the indictment, a person commits the offense of aggravated sexual

Buckner v. State                                                                              Page 2
assault if (1) he intentionally or knowingly: “(i) causes the penetration of the anus or

female sexual organ of a child by any means; [or] . . . (iii) causes the sexual organ of a

child to contact or penetrate the mouth, anus, or sexual organ of another person,

including the actor”; and (2) the victim is younger than fourteen years of age. Act of

May 28, 1999, 76th Leg., R.S., ch. 417, § 1, 1999 Tex. Gen. Laws 2752, 2752 (amended

2003) (current version at TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i) & (iii), (2)(B) (West

Supp. 2012)).

        The evidence presented in this case, viewed in the light most favorable to the

verdict, is as follows: Waco Police Detective Maria Bucher, who is assigned to the

Crimes Against Children Unit, testified that she interviewed A.L. in 2008, when A.L.

was fifteen years old, regarding an alleged sexual assault. A.L. seemed comfortable

talking to her and was very straightforward in her answers to questions. Detective

Bucher recalled that when they talked about what had happened to A.L., A.L. became

very emotional to the point that her voice was quivering. Detective Bucher stated that

A.L.’s behaviors seemed appropriate given the nature of the allegations she was

making.

        Through a conversation with A.L.’s mother, Detective Bucher had discovered

that the first person A.L. told about the incident was A.L.’s grandmother, whom

Detective Bucher also interviewed. Detective Bucher stated that in her interviews with

A.L.’s mother and grandmother, she was not given the impression that they were just

trying to get Buckner in trouble. Detective Bucher said that the outcry in this case was

not immediate but that that did not concern her because it is not uncommon. Detective

Buckner v. State                                                                    Page 3
Bucher was also unable to retrieve any scientific evidence in her investigation but

explained that neither is that unusual. Detective Bucher ultimately obtained an arrest

warrant for Buckner.

        A.L., who was eighteen years old at the time of trial, testified that when she was

seven years old and in the first grade, her mother dated Buckner. One afternoon in

April 2000, when A.L. was seven, Buckner picked her up from school and took her

home to her apartment. She did not remember ever being alone with Buckner before

that time. They were watching cartoons in the living room when Buckner asked her if

she could keep a secret. She knew that her mother did not usually allow her to have

candy, so she thought that was what he was talking about. She asked Buckner if she

could have some candy, and he said that she could. She got some candy and returned,

and they continued to watch television. At some point, Buckner had A.L. lay down in

the living room. She had been born with a bladder condition that still required her to

see an urologist, so she assumed that Buckner was making her lay down to help her.

Buckner then started undoing and pulling down her skort. The living room windows

were partially open, so A.L. became embarrassed and said something like “not in here.”

Buckner then told her to go into the bathroom, take off her clothes, and meet him in the

bedroom of the single-bedroom apartment.

        A.L. testified that she went to the bathroom and then met Buckner in the

bedroom. Buckner was at the foot of the bed and told her to lie down. A.L. complied.

Buckner knelt on the bed and spread her legs. She asked him if he could help her with

her bladder problem, and he replied that he could. Buckner then unfastened his pants

Buckner v. State                                                                    Page 4
and pulled out his penis. A.L. looked away. A.L. stated that, based on what she knows

now, she would describe their interaction as intercourse, meaning penetration. She

stated that Buckner put his penis inside her vagina. A.L. said that when she got up to

get dressed, she felt pain between her legs and in her lower abdomen. When asked on

cross-examination if she did not remember exactly what happened, A.L. replied that she

recalled some of it and that she recalled the sensations afterward so “it was pretty

apparent what had taken place.” She stated that Buckner must have penetrated her

because the pain was so excruciating afterward that she blocked it.

        A.L. testified that after the incident, they went and picked her mother up from

work.     A.L. did not tell her mother what had happened at that point, and the

relationship between Buckner and her mother did not last much longer. A.L. did not

testify to any other sexual encounters with Buckner, but she remembered an occasion

when she was sitting in a truck between Buckner and her mother, and he pulled out a

pocketknife and was showing it to her mother. He held the pocketknife in front of her

face. She was scared and felt as though he was threatening her. Buckner did not say

anything to her at that time, but at some point, he did tell her not to tell her mother

what had happened.

        A.L. testified that she was very close to her grandmother because her

grandmother helped raise her in place of her father. A.L. told her grandmother part of

what had happened with Buckner in October of the next year.              She told her

grandmother only that Buckner had touched her inappropriately. Her grandmother

then told A.L.’s mother. When A.L. was fourteen years old, she finally told everything

Buckner v. State                                                                 Page 5
that had happened with Buckner to her boyfriend R.S. R.S. encouraged her to tell her

mother and grandmother. A.L. said that a week or two later, she told her grandmother

and mother that there had actually been intercourse with Buckner. A.L. did not want to

report it to the police, but after her grandmother “badgered [her] for a year” about it,

she agreed to report it to the police.

        Sanya, A.L.’s mother, testified that A.L., her only child, had some medical issues

as a child. A.L.’s bladder was too small for her body, which caused her to have urinary

tract infections (UTIs) and accidents. Except for the UTIs, however, A.L. had no other

pain associated with her bladder problem. A.L. saw urologists frequently, and she was

used to taking off her clothes and putting on a gown when she saw the doctor.

        Sanya testified that she met Buckner around the end of March 2000. They began

dating, and she introduced him to A.L. and her mother a couple of weeks later. She

gave Buckner her key to the apartment, and he stayed there during the day when he

was not working. She thought she allowed Buckner to pick A.L. up from school “about

two times.” She never used Buckner as a babysitter, and if he picked A.L. up from

school, they were supposed to immediately pick her up from work. She did not know

that Buckner was ever alone at the apartment with A.L. Sanya and Buckner ended their

relationship at the beginning or middle of May.

        Sanya recalled that at the end of April or beginning of May, A.L. did not want to

be at the apartment anymore and wanted to stay with her grandmother all the time.

A.L. also told Sanya that she did not want to see a male doctor anymore, so Sanya

found her a female doctor. As A.L. got older, she started dressing in darker colors and

Buckner v. State                                                                    Page 6
was getting more depressed and unhappy. At the recommendation of a physician, A.L.

began seeing a therapist when she was about eight or nine years old.                 She was

diagnosed with ADHD and depression and was prescribed medication. A.L. tried to

commit suicide a few times. Sanya also discovered that A.L. was cutting herself.

        Sanya testified that about a year and a half after she and Buckner had ended their

relationship, her mother told her that something had happened between Buckner and

A.L. Sanya asked A.L. if it was true, and A.L. said that Buckner had touched her

inappropriately. Sanya asked A.L. if Buckner had done more than touch her, and A.L.

said no. Sanya did not push A.L. to talk about it because A.L. did not want to talk

about it. Sanya encouraged A.L. to talk to her therapist about it, but A.L. did not.

Sanya did not go to the police at that time because A.L. did not want to tell the police.

Sanya also knew that Buckner was no longer in Texas, so she felt like the threat had

been removed.

        Sanya testified that after A.L. started dating R.S. when she was about fourteen or

fifteen, A.L. finally told Sanya and Sanya’s mother that Buckner had “raped” her.

Sanya took that to mean that Buckner had forced sex on her. A.L. said that she had

been afraid to tell Sanya or Sanya’s mother because Buckner had threatened to hurt

them. Sanya knew that A.L. had seen Buckner’s pocketknife. Sanya wanted A.L. to go

to the police, but A.L. would not go because she did not want to talk about it. About a

year later in 2008, however, Sanya was able to talk A.L. into going to the police.

        Margaret, A.L.’s grandmother, testified that she first met Buckner in late March

or early April and told him that she did not approve of him. Margaret stated that he

Buckner v. State                                                                       Page 7
“just felt evil.” Margaret did not think that A.L. ever heard her say that she did not

approve of Buckner, but she did not know for sure. She thought Sanya dated Buckner

for about a month and a half.

        Margaret testified that in October 2001, she and A.L. were watching a scary

movie when A.L. said, “I have something to tell you.” A.L. told her that Buckner had

touched her inappropriately. Margaret stated that she “freaked” and started crying.

She asked A.L. when it had happened, and A.L. said it had been about a year. Margaret

asked A.L. why she had not said something before, and A.L. responded that Buckner

said that he would kill her, Sanya, and Margaret. A.L. told Margaret that Buckner

always had a knife that he would put where she could see it. Margaret asked A.L. if

Buckner had raped her, but A.L. would not tell her. Margaret wanted to call the police,

but A.L. did not want her to. Margaret told Sanya about what A.L. had told her, and

Sanya talked to A.L. about it. At some point after A.L. made her initial outcry to

Margaret, one of A.L.’s pediatricians asked whether anyone had touched A.L.

inappropriately, and Margaret said “no.”

        Margaret testified that when A.L. was fourteen, Margaret found out that Buckner

had raped A.L. A.L. had told Sanya about it shortly after she had told her boyfriend.

Margaret had tried to get A.L. to go to the police, but she would not go.

        Dr. William Lee Carter testified that he is a psychologist but that he had not

provided counseling or therapy to A.L. He was asked by the prosecutor to observe A.L.

while she testified. Among other things, Dr. Carter stated that A.L.’s depiction of the

incident with Buckner was classic of dissociation. He explained that when a child is in

Buckner v. State                                                                 Page 8
the midst of trauma for which he or she was completely unprepared, the child may

zone out as a means of pushing through the situation. Dr. Carter stated that that helps

explain why A.L. does not remember the details after she was naked and lying on the

bed. Furthermore, Dr. Carter testified that it is common for children who have been

sexually abused to tell some of what happened to them and then wait to tell the rest of

the story after years had gone by, just as A.L. did.

        Dr. Deborah Brock, a clinical psychologist, testified that she treated A.L. from

January 2004 to September 2005. In discussing A.L.’s history during intake, Sanya

informed Dr. Brock that A.L. had been touched inappropriately “several years before.”

Dr. Brock later confronted A.L. with the information. A.L. affirmed it but did not

elaborate. Dr. Brock specifically inquired whether the incident involved intercourse or

oral sex, and A.L. denied both. Dr. Brock did not recall A.L. making allegations of

sexual abuse against anyone else.

        Dr. Brock testified that she and A.L. developed a “fair relationship” during the

course of A.L.’s treatment. She thought that A.L. felt comfortable with her. A.L. knew

that Dr. Brock would occasionally discuss what happened during the sessions with

Sanya and Margaret. But A.L. did talk to Dr. Brock about problems she had with boys,

with Sanya, with Margaret, with school, and with herself.

        Buckner argues that the foregoing evidence is insufficient to prove contact or

penetration of A.L.’s vagina by or with his penis and that, therefore, the evidence at best

supports a conviction only for indecency with a child by contact, namely, that he




Buckner v. State                                                                     Page 9
touched A.L.’s vagina with his hand.1 In support of this argument, Buckner points to

the fact that A.L. made no allegation of sexual abuse until a year and a half after he

allegedly sexually assaulted her and that, even then, she only alleged that he touched

her inappropriately. Buckner also emphasizes that A.L. did not allege that he “raped”

her until sometime in 2007, seven years after he allegedly sexually assaulted her, even

though she had received psychological treatment that specifically addressed sexual

abuse. Buckner stresses that A.L.’s testimony was also very vague on the issue of

penetration. Finally, Buckner claims that Margaret strongly disliked him and therefore

had a strong motive to persuade A.L. to make false allegations against him.

        The jury is the exclusive judge of the facts, the credibility of the witnesses, and

the weight to be given to the witnesses’ testimony. Jaggers v. State, 125 S.W.3d 661, 672

(Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). A jury may believe all, some, or none

of any witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

Here, A.L. testified to all of the elements of the offense, and, by finding Buckner guilty,

the jury obviously believed A.L.’s testimony and rejected Buckner’s arguments. As the

reviewing court, we “should not substantially intrude upon the jury’s role as the sole

judge of the weight and credibility of witness testimony.” Vasquez v. State, 67 S.W.3d

229, 236 (Tex. Crim. App. 2002).

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


1 The former version of section 21.11 of the Penal Code entitled “Indecency With a Child” provided in
pertinent part: “A person commits an offense if, with a child younger than 17 years and not his spouse,
whether the child of the same or opposite sex, he . . . engages in sexual contact with the child.” Act of
May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3616 (amended 2001 & 2009)
(current version at TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011)).

Buckner v. State                                                                                 Page 10
conclude that a rational trier of fact could have found Buckner committed the offense of

aggravated sexual assault beyond a reasonable doubt. We overrule Buckner’s first

issue.

                                   Dr. Brock’s Testimony

         In his second issue, Buckner contends that the trial court abused its discretion in

admitting Dr. Brock’s testimony regarding A.L.’s sexual abuse allegations under Rule of

Evidence 803(4) because the statements were made to Dr. Brock by a third-party

declarant.

         In a hearing outside the jury’s presence, Dr. Brock testified as follows:

                Q       (BY [Prosecutor]) I believe the question that I was just trying
         to ask you is, um, did you learn anything about a sexual abuse history that
         [A.L.] had experienced?

               A      Yes. I was told that there was, um, some touching and -- by
         the mother’s boyfriend, um, two or three years before I had seen her,
         because I saw her when I think she was 10. And, um --

                   Q   Who provided that information to you?

                   A   Um, mother did.

                Q      Was that information provided in furtherance of treatment
         for [A.L.]?

                A.     Yes. It was part of the treatment history. I mean, as far as
         the person’s history.

                Q       Was that also provided as information you could use in
         treating the family unit and the problems that they were experiencing?

                   A   Sure.

                Q      Is that information that you needed in order to properly
         treat both [A.L.], Margaret and Sanya []?

Buckner v. State                                                                          Page 11
                   A   Yes.

               Q    Did she -- oh, did [A.L.] confirm to you at any point during
        your treatment of the family that she had been touched by her mother’s
        boyfriend?

                   A   Yes.

              Q      She was not the source of the information originally. Did
        you have to confront her with that at some time during her treatment?

                   A   Yes.

                   Q   Did she ever elaborate and provide further details with you?

                   A   No.

Buckner made the following objection:

               Well, the objection, Judge, is that it’s now we basically have hearsay
        upon hearsay. We have -- you know, they’re offering this on a medical
        exception -- the medical exception to the hearsay rule, but it’s a statement
        made by the mother to the -- the psychologist about what the child has
        told her. So it’s not only -- it’s double hearsay as well.

The trial court overruled the objection, and Dr. Brock testified to the foregoing in the

jury’s presence.

        Even if we conclude that Dr. Brock’s testimony in the foregoing exchange was

inadmissible hearsay, we hold that Buckner was not harmed by admission of the

testimony. The admission of otherwise inadmissible hearsay is non-constitutional error,

which we disregard if the error did not affect the appellant’s substantial rights. TEX. R.

APP. P. 44.2(b); Moon v. State, 44 S.W.3d 589, 594-95 (Tex. App.—Fort Worth 2001, pet.

ref’d). A substantial right is affected when the error had a substantial and injurious

effect or influence on the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim.

Buckner v. State                                                                        Page 12
App. 1997).

        The outcome of this case turned on A.L.’s credibility, which was not

strengthened by Dr. Brock’s statement. Furthermore, A.L. and Margaret both testified

that in October 2001 A.L. told Margaret that Buckner had touched A.L. inappropriately

and that Margaret had then told Sanya about it. Sanya confirmed in her testimony that

about a year and a half after she and Buckner had ended their relationship, Margaret

told her that something had happened between Buckner and A.L. Sanya asked A.L. if it

was true, and A.L. said that Buckner had touched her inappropriately. In light of this

testimony, we cannot conclude that Dr. Brock’s mere statement that, at the outset of her

treatment of A.L., Sanya told her that one of her former boyfriends had inappropriately

touched A.L. had a substantial and injurious effect or influence on the jury’s verdict.

        Therefore, we conclude that even if the trial court erred in admitting Dr. Brock’s

testimony as stated above, the error did not affect Buckner’s substantial rights. See TEX.

R. APP. P. 44.2(b). We overrule Buckner’s second issue.

                                       Conclusion

        Having overruled both of Buckner’s issues, we affirm the trial court’s judgment.


                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 11, 2013
Do not publish
[CRPM]

Buckner v. State                                                                    Page 13
