Opinion filed May 14, 2015




                                      In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-11-00283-CR
                                    __________

                      JOE LOUIS TIENDA, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee

                    On Appeal from the 428th District Court
                            Hays County, Texas
                        Trial Court Cause No. 07-802


                                   OPINION
      Joe Louis Tienda appeals his jury convictions for the offense of indecency
with a child by sexual contact. See TEX. PENAL CODE ANN. § 21.11(a)(1), (c) (West
2011). Appellant was indicted on three counts of indecency with a child by sexual
contact. The jury acquitted him of Count One and convicted him of Counts Two
and Three. On Count Three, the jury assessed his punishment at confinement for a
term of six years in the Texas Department of Criminal Justice, Institutional Division.
On Count Two, the jury assessed his punishment at confinement for a term of ten
years and recommended that the punishment be suspended. Accordingly, the trial
court suspended the imposition of Appellant’s ten-year sentence of confinement and
placed him on community supervision for a term of ten years.
      In six issues on appeal, Appellant contends that (1) one of his convictions for
indecency with a child should be set aside on double jeopardy grounds; (2) the
evidence was insufficient to sustain his convictions; (3) the trial court erred when it
admitted, as an excited utterance, the testimony of a school nurse regarding the
child’s statement to her; (4) the trial court erred when it admitted, as an excited
utterance, an audio recording of an interview of the child taken by a police detective;
(5) the trial court erred when it admitted out-of-court statements made by the child
to the police detective as information relied upon by the detective in his
investigation; and (6) the trial court erred when it allowed improper opinion
testimony from the police detective. We reverse and remand.
                                  Background Facts
      Appellant was charged by indictment with three counts of indecency with a
child by contact. In light of the jury’s verdict, we direct our attention to Counts Two
and Three. These two counts of the indictment alleged that Appellant engaged in
sexual contact “by touching the buttocks of [S.D.] with his male sexual organ with
the intent to arouse or gratify the sexual desire of [Appellant].” Count Two alleged
the date of occurrence as “on or about” July 1, 2007, and Count Three alleged the
date of occurrence as “on or about” August 1, 2007.
      S.D. was a sixteen-year-old girl who lived with her mother and Appellant, her
stepfather. In September of 2007, S.D. told Darelle Jordan, a school nurse, that some
events happened over the summer between her and her stepfather that made her feel
uncomfortable. Nurse Jordan testified that S.D. made the following report to her:
             She said he -- when her mother was not home and she was alone
      at the house, that he would sit next to her, close to her, put his hand near

                                           2
        her breast.1 She would ask him to move his hand, he would refuse. He
        would joke, act like it was all in fun. She would have to actually remove
        herself from his presence in order to get him to leave her alone. She
        would try to retreat to her bedroom.
              When she retreated to her bedroom, he followed her into the
        bedroom, he laid down in the bed next to her, he rubbed his pelvis and
        genital area on her, he laid on top of her. When he was doing that, she
        could feel his erect penis, it made her frightened and uncomfortable.
        Nurse Jordan told S.D. that she would have to report these incidents to Child
Protective Services (CPS). S.D. did not want Nurse Jordan to report anything. Nurse
Jordan testified that S.D. was worried that, if Appellant was reported to authorities,
it “might cause problems in their family, that financial support by [Appellant] would
be missed by her family.” Nevertheless, Nurse Jordan reported these events to CPS.
        Scott Johnson, a detective with the San Marcos Police Department, received
the report from CPS. He met with S.D. at her high school. Detective Johnson
testified that he interviewed S.D. and recorded her statements about what had
happened between her and Appellant. He testified that S.D. made the following
report to him:
               [S.D.] described activity which began in that summer proceeding
        [sic] that school year of 2007. What began as uncomfortable displays
        of affection on the part of [Appellant] where he began kissing her,
        which then evolved into further attempts to kiss on the mouth. She
        described him trying to kiss her using his tongue. She said that he began
        -- when he would embrace her, he would frequently brush his hand
        across her --
               ...

              As I was saying, she described the defendant brushing his hand
        across her breast, making her feel very uncomfortable. She then
        described her efforts to try to avoid him by going into her room and
        staying in her room.
        1
         Count One of the court’s charge permitted the jury to find that Appellant engaged in sexual contact
with S.D. by touching her breast with his hands with the intent to arouse or gratify his sexual desire. As
noted previously, the jury acquitted Appellant of this offense.

                                                     3
             She described [Appellant] coming into her room and lying in bed
      with her. And at times, on more than one occasion, lying on top of her
      in -- he was dressed in shorts. And she -- the action she described was
      him lying on top of her so that his genitals would be in contact through
      the clothing with her buttocks and him moving back and forth in a
      motion, and she also described feeling his erect penis through his shorts
      while he was doing that.

      A portion of the audio recording of Johnson’s interview of S.D. was admitted
at trial as an excited utterance. In the portion of the audio recording admitted as
evidence, S.D. said that Appellant would lie on top of her while she was lying on
her stomach. She reported that Appellant would move “up and down” on her while
lying on top of her and that she could feel his penis when he was doing this even
though he was wearing shorts. S.D. stated to Detective Johnson that Appellant’s
penis was “hard” and that he did this “three times.”
      At the time of trial, S.D. was twenty years old. She was reluctant to testify
against Appellant.    The trial court issued a writ of attachment to secure her
attendance at trial after she did not voluntarily comply with a subpoena. S.D. told
the prosecutors prior to trial that she wanted the charges against Appellant dropped.
When asked why she wanted the charges dropped, S.D. testified: “Because I felt like
everything was fine in our family and I just wanted to just move on with my life and
just, you know, be happy again.” S.D. was hesitant to testify that Appellant had
sexual contact with her. S.D. initially testified at trial that Appellant’s penis was not
hard on the occasions that he lay on top of her. She also testified that it was possible
that what had happened was an accident or simply wrestling with Appellant. When
confronted with the statements she made to Detective Johnson, however, S.D.
testified that she told him the truth about what had occurred. S.D. also testified that
she remembered telling Detective Johnson that she felt Appellant moving up and
down when he was on top of her and she felt his hard penis on her “butt.”


                                           4
                  Double Jeopardy and Sufficiency of the Evidence
      In his first issue, Appellant asserts a double jeopardy claim. He argues that
he suffered multiple punishments for the same offense. Specifically, Appellant
contends that he was convicted of two identical offenses “arising out of only one
possible fact scenario.” He asserts that there was evidence about only one occasion
when Appellant’s penis came into contact with S.D.’s buttocks. He supports this
contention with the following comment that one of the prosecutors made during a
bench conference concerning the State’s compliance with Brady v. Maryland, 373
U.S. 83 (1963).
              But the meeting I had with [S.D.] there was no recantation. She
      confirmed everything she told to the detective was the truth. And then
      she went over, step by step, with me what it is the defendant had done
      to her.
             She made it clear that there were three separate occasions. And
      that what we had misinterpreted from her interview was that the penis
      to the buttocks happened three times and that it really only happened
      once. The first time was him getting in bed and holding her close and
      the second time was the penis to the buttocks and the third time was
      kissing and breast touching.
      The Fifth Amendment’s Double Jeopardy Clause provides that no person shall
“be subject for the same offence to be twice put in jeopardy of life or limb.” U.S.
CONST. amend. V.       Among the protections afforded by this provision is the
protection from multiple punishments for the same offense. Langs v. State, 183
S.W.3d 680, 685 (Tex. Crim. App. 2006). There are two variations of a multiple-
punishments claim: (1) where there are both a greater and a lesser included offense
and the same conduct is punished twice—once for the basic conduct and a second
time for that conduct plus more—and (2) where the same criminal act is punished
under two distinct statutes and the legislature intended the conduct to be punished



                                         5
only once—such as causing a single death and being charged with both intoxication
manslaughter and involuntary manslaughter. Id.
      The State contends that Appellant waived his double jeopardy claim by not
raising it in the trial court. We disagree. The State is correct that a double jeopardy
claim generally must be raised in the trial court to preserve the error for appellate
review. See Gonzalez v. State, 8 S.W.3d 640, 643–46 (Tex. Crim. App. 2000).
Because of the fundamental nature of the double jeopardy protections, however, a
double jeopardy claim may be raised for the first time on appeal or on collateral
attack if two conditions are met: (1) the undisputed facts show that the double
jeopardy violation is clearly apparent on the face of the record and (2) when
enforcement of the usual rules of procedural default serves no legitimate state
interest. Langs, 183 S.W.3d at 687; Gonzalez, 8 S.W.3d at 643.
      Appellant’s double jeopardy claim is essentially a challenge to the sufficiency
of the evidence to show that he committed indecency with a child by sexual contact
as alleged in Counts Two and Three of the indictment on multiple occasions. He
asserts that, at most, the evidence only shows that he committed the act on one
occasion. Based upon this assertion, he contends that two convictions for the same
act constitute a double jeopardy violation. “A claim regarding sufficiency of the
evidence need not be preserved for review at the trial level and is not waived by the
failure to do so.” Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim. App. 2001);
accord. Proctor v. State, 967 S.W.2d 840, 842 (Tex. Crim. App. 1998).
Additionally, the grounds for considering a double jeopardy claim for the first time
on appeal also apply to Appellant’s claim because the alleged violation would be
clearly apparent on the face of the record and no legitimate state interest would be
served by not considering Appellant’s claim. Gonzalez, 8 S.W.3d at 643.
      We review a sufficiency of the evidence issue, regardless of whether it is
denominated as a legal or factual claim, under the standard of review set forth in
                                          6
Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912
(Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—
Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of the evidence
in the light most favorable to the verdict and determine whether any rational trier of
fact could have found the elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010). When conducting a sufficiency review, we consider all the evidence admitted
at trial, including pieces of evidence that may have been improperly admitted.
Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s role as the
sole judge of the witnesses’ credibility and the weight their testimony is to be
afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder’s
duty 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;
Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we
presume that the factfinder resolved the conflicts in favor of the prosecution, and we
defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
      Appellant bases his “one possible factual scenario” contention on S.D.’s live
trial testimony. In this regard, S.D. testified that she only remembered one time that
Appellant lay on top of her. Appellant supports this contention with the comment
made by the prosecutor during a bench conference. We first note the prosecutor’s
comment does not constitute evidence, particularly given the fact that it was during
a bench conference when the jury was not present in the courtroom. Appellant’s
evidentiary contention ignores the other items of evidence pointing to Appellant
committing the alleged act on multiple occasions. In the portion of S.D.’s statement
to Detective Johnson that was played for the jury, she stated that Appellant lay on
top of her three times in her room with his penis making contact with her buttocks.
                                          7
She stated in the interview that “he was moving the three times I caught him.”
Detective Johnson also testified that the charged conduct happened “on more than
one occasion” in describing what S.D. had reported to him.
      “A person who commits more than one sexual act against the same person
may be convicted and punished for each separate and discrete act, even if those acts
were committed in close temporal proximity.” Aekins v. State, 447 S.W.3d 270, 278
(Tex. Crim. App. 2014). The events that S.D. reported to Detective Johnson
constitute evidence that Appellant committed the alleged act on multiple occasions.
The fact that Appellant challenges the admissibility of these items of evidence does
not affect our review of the sufficiency of the evidence because we are required to
consider both admissible and inadmissible evidence under the applicable standard
of review. Furthermore, it was within the jury’s province to resolve any conflicts
between S.D.’s live trial testimony and the events she reported to Detective Johnson,
and we presume that the jury resolved those conflicts in support of the verdict.
Viewing the evidence in the light most favorable to the verdict, we conclude that a
rational trier of fact could have found beyond a reasonable doubt that Appellant
committed the offense of indecency with a child by sexual contact on more than one
occasion as alleged in Counts Two and Three. We overrule Appellant’s first issue.
      Appellant also challenges the sufficiency of the evidence in his second issue.
A person commits the offense of indecency with a child by sexual contact if the actor
touches any part of the body of a child, including touching through clothing, with
the actor’s anus, breast, or any part of the actor’s genitals with the intent to arouse
or gratify the sexual desire of any person. PENAL § 21.11(a)(1), (c)(2). As noted
previously, Counts Two and Three of the indictment alleged that Appellant
committed the offense of indecency with a child by sexual contact “by touching the
buttocks of [S.D.] with his male sexual organ with the intent to arouse or gratify the
sexual desire of [Appellant].” Appellant contends that the evidence was insufficient
                                           8
to establish that he engaged in the alleged contact with the intent to arouse or gratify
his sexual desire. He additionally contends that the evidence does not establish that
sexual contact actually occurred because both S.D. and Appellant were clothed at
the time of the incidents and because S.D. was covered with a blanket.
      In a prosecution for indecency with a child, the defendant’s specific intent to
arouse or gratify his sexual desire can be inferred from his conduct, his remarks, and
all surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim.
App. [Panel Op.] 1981); Moore v. State, 397 S.W.3d 751, 754 (Tex. App.—San
Antonio 2013, no pet.). Intent can be inferred from conduct alone, and no oral
expression of intent or visible evidence of sexual arousal is necessary. Scott v. State,
202 S.W.3d 405, 408 (Tex. App.—Texarkana 2006, pet. ref’d).                 Further, a
complainant’s testimony alone is sufficient to support a conviction for the offense
of indecency with a child. Moore, 397 S.W.3d at 754; Connell v. State, 233 S.W.3d
460, 466 (Tex. App.—Fort Worth 2007, no pet.).
      Much like with his contentions in support of his first issue, Appellant bases
his challenge to the intent element on S.D.’s live testimony wherein she testified
that, although she could feel Appellant’s penis, it was not “hard.” He also points out
S.D.’s trial testimony wherein she testified that Appellant was possibly wrestling
with her and that she did not believe his conduct was sexual in nature. In her reports
to Detective Johnson and Nurse Jordan, S.D. stated that she could feel Appellant’s
erect penis when he climbed on top of her. Furthermore, S.D. testified that she “did
tell the detective his penis was hard” and that her report to Detective Johnson was
correct.   Additionally, S.D. reported to Detective Johnson that Appellant was
moving up and down when the contact occurred and that it happened on more than
one occasion. Viewing the evidence in the light most favorable to the jury’s verdict,
we conclude that a rational trier of fact could have found beyond a reasonable doubt


                                           9
that Appellant possessed the specific intent to arouse or gratify his sexual desire
when engaging in the alleged conduct.
      Appellant acknowledges that the definition of sexual contact includes
“touching through clothing.” PENAL § 21.11(c). He contends that sexual contact
could not have occurred in this case, however, because there were multiple layers of
clothing or fabric separating Appellant’s penis and S.D.’s buttocks. We disagree.
The statutory definition of sexual contact simply provides that it may occur through
clothing—without reference to the number of layers of clothing or fabric separating
the perpetrator and the victim. In Resnick, the court stated that the essence of the act
of touching “is to perceive by the sense of feeling.” Resnick v. State, 574 S.W.2d
558, 560 (Tex. Crim. App. [Panel Op.] 1978). Irrespective of the number of layers
of fabric between S.D. and Appellant, S.D. testified that she could feel Appellant’s
penis on her buttocks when he lay on top of her. A rational trier of fact could have
found beyond a reasonable doubt that Appellant touched her buttocks with his penis
based upon her testimony that she felt his penis touching her buttocks. We overrule
Appellant’s second issue.
                                       Hearsay
      Appellant’s third, fourth, and fifth issues concern the admissibility of out-of-
court statements. We review a trial court’s decision to admit evidence under an
abuse of discretion standard. Wall v. State, 184 S.W.3d 730, 743 (Tex. Crim. App.
2006). We will uphold an evidentiary ruling on appeal if it is correct on any theory
of law that finds support in the record. Gonzalez v. State, 195 S.W.3d 114, 126 (Tex.
Crim. App. 2006). We initially address Appellant’s fourth issue in which he
challenges the admission of portions of an audio recording of an interview with S.D.
      Detective Johnson was the first witness called by the State. S.D. had made
reports concerning allegations of sexual assault against Appellant, and CPS referred
those allegations to Detective Johnson. The allegations concerned events that had
                                          10
occurred a couple of months before he received the report. In September 2007,
Detective Johnson met with S.D. in the school administration office. Although S.D.
initially thought that Detective Johnson was there to talk with her about a missing
cell phone, after he introduced himself and explained why he was there, he
interviewed her about the sexual assault allegations.
      Detective Johnson testified that S.D. became emotional at times during the
interview and that he had to stop the interview a couple of times because S.D. began
to cry. He answered affirmatively to the following question: “[D]id it seem to you
that her emotional state and her breakdown was directly related to the information
and the reliving of what she was telling you?” He additionally testified, “I felt like
her emotional state was directly attributed to the trauma that she had experienced.”
Detective Johnson made an audio recording of the interview.
      At trial, the prosecutor sought to admit the audio recording under the excited
utterance exception to the hearsay rule as applied in McCarty. See McCarty v. State,
257 S.W.3d 238, 241–42 (Tex. Crim. App. 2008). The trial court recessed the trial
in order to evaluate the applicability of the McCarty factors. The trial court and
Appellant’s counsel engaged in a lengthy discussion regarding the applicability of
the McCarty factors, especially the factor that related to the elapsed time between a
startling condition and an earlier event to which a declarant testified. Relying on
McCarty, the trial court admitted a seven-minute portion of S.D.’s recorded
statement under the excited utterance exception to the hearsay rule. Id.
        Hearsay is a statement, other than one made by the declarant while testifying
at trial, that is offered to prove the truth of the matter asserted. TEX. R. EVID. 801(d);
see Sandoval v. State, 409 S.W.3d 259, 281 (Tex. App.—Austin 2013, no pet.).
Hearsay is inadmissible except as provided by statute or the Rules of Evidence.
TEX. R. EVID. 802; see Sandoval, 409 S.W.3d at 281. Excited utterances are
admissible as an exception to the hearsay rule. See Sandoval, 409 S.W.3d at 284.
                                           11
An excited utterance is a “statement relating to a startling event or condition made
while the declarant was under the stress of excitement caused by the event or
condition.” TEX. R. EVID. 803(2); Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim.
App. 2001); see Sandoval, 409 S.W.3d at 284.
      The spontaneous nature of the statement is the main factor to be considered
when a court determines the admissibility of an excited utterance. Tezeno v. State,
484 S.W.2d 374, 379 (Tex. Crim. App. 1972). The declarant must have made the
statement before the excitement that is caused by the startling event or condition has
abated. Sandoval, 409 S.W.3d at 284. This is so because the excited utterance
exception is based on an assumption that the person making the statement is not then
capable of the kind of reflection that would enable her to fabricate the information
about which she testifies. Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App.
2005). The trustworthiness of the statement is founded on the fact that it is the event
that speaks through the person and not merely the declarant relating the event.
Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). And, it is not
necessary that the startling event be based on the original offense; the startling event
may be a subsequent event, if it is in itself a startling event. Sandoval, 409 S.W.3d
at 285. To be an excited utterance, the statement must be triggered by the shocking
or startling event. Id.
      In McCarty, the court laid out three conditions for a court to consider when it
determines the admissibility of a hearsay statement under the excited utterance
exception:
      (1) the “exciting event” should be startling enough to evoke a truly
      spontaneous reaction from the declarant; (2) the reaction to the startling
      event should be quick enough to avoid the possibility of fabrication;
      and (3) the resulting statement should be sufficiently “related to” the
      startling event, to ensure the reliability and trustworthiness of that
      statement. McCarty, 257 S.W.3d at 241.


                                          12
      Appellant contends that the holding by the Austin Court of Appeals in
Sandoval is controlling regarding the admissibility of S.D.’s interview with
Detective Johnson under the excited utterance exception to the hearsay rule.
Appellant’s reliance on Sandoval is understandable because this case was transferred
to us from the Third Court of Appeals in Austin pursuant to an order of the Texas
Supreme Court under the authority of Section 73.001 of the Texas Government
Code. TEX. GOV’T CODE ANN. § 73.001 (West 2013). In accordance with Rule 41.3
of the Texas Rules of Appellate Procedure, we are required to follow the precedent
of the Austin Court of Appeals “unless it appears that the transferor court itself
would not be bound by that precedent.” TEX. R. APP. P. 41.3, comment to 2008
change.
      The out-of-court statement that the trial court admitted as an excited utterance
in Sandoval was made by a fifteen-year-old victim to her fifteen-year-old cousin.
Sandoval, 409 S.W.3d at 270–74. Upon hearing the defendant’s name mentioned
during a conversation, the victim remarked that she did not like the defendant and
asked her cousin, “Can I tell you something?” Id. at 285. After telling her cousin
that she “was scared to tell anybody,” the victim told her cousin that the defendant
had sexually assaulted her by forcing her to have sexual intercourse with him. Id. at
270, 285. The cousin testified that, when the victim made the statement, she
appeared to be under the emotions of what had happened to her. Id. at 285.
      The Austin court held that the victim’s statement to her cousin was not an
excited utterance. Id. at 285–86. It determined that the record did not support a
finding that the victim was still dominated by the excited state produced by the attack
that had occurred three or four months earlier or that the mention of the defendant’s
name was the type of startling or shocking event contemplated by the excited
utterance exception. Id. The court noted that the victim’s age, the delay, her
reluctance, and her contemplation of consequences all weighed against the
                                          13
spontaneity requirement for the excited utterance exception to apply. Id. (citing
Apolinar, 155 S.W.3d at 186). The court concluded that the victim’s disclosure to
her cousin was a narrative of a painful event, not an excited utterance. Id. at 286.
      The sponsoring witness of the out-of-court statement in Sandoval was a
minor. Thus, the admissibility of the statement was based upon a secondhand
description from another minor about the victim’s emotional state at the time of the
statement. In the case now before us, the sponsoring witness was a veteran police
detective. Furthermore, the trial court had S.D.’s actual voice to review in order to
determine whether or not her statement to Detective Johnson constituted an excited
utterance. We also have S.D.’s actual words to consider in determining whether the
trial court abused its discretion when it determined that the admitted portion of her
statement constituted an excited utterance.       Accordingly, there are procedural
differences between the facts in this appeal and those in Sandoval. Nevertheless, we
conclude that the admitted portion of S.D.’s recorded interview, as in Sandoval,
constituted a narrative of a painful event rather than an excited utterance.
      Our task of reviewing the seven-minute portion of the audio recording
admitted into evidence has not been easy. The portion admitted into evidence was
not transcribed in the reporter’s record either time it was played for the jury.
Additionally, the initial recording supplied to our court with the reporter’s record did
not contain the portion of the interview played for the jury. We have subsequently
obtained a complete copy of the interview, and we have carefully listened to the
seven-minute portion played for the jury. Given the recess called by the trial court
prior to determining that a portion of the recorded interview was admissible, we
assume that the trial court also had the opportunity to listen to the interview prior to
determining that it was admissible as an excited utterance.
      In the admitted portion of the interview, Detective Johnson asked
approximately twenty-six questions, several of which were leading.        The admitted
                                          14
portion of the interview can be broken down into two chronological sections for
purposes of our analysis. In the first section, S.D. answered Detective Johnson’s
questions in a calm and direct manner with no hesitation. The admitted portion
(starting at the 23:58 mark) began with Detective Johnson asking S.D. whether
Appellant had touched her vagina or bottom or whether he had asked her to touch or
look at the private parts of his body. She replied “no” to both of these questions.
Detective Johnson then asked S.D. about her report to a school nurse that
“[Appellant] would lay on the bed with you and push his body against you.” S.D.
agreed that this report was “true.” Detective Johnson then asked S.D. to tell him
about what she had reported to the school nurse. She then gave a description of
Appellant lying on top of her while she lay on her stomach in her bed.
      The second section of the admitted portion of the interview begins at
approximately the 25:50 mark of the interview. Detective Johnson asked S.D. what
part of Appellant’s body was touching her body. She replied by saying, “His penis,
like I can feel it, and I told my mom this.” S.D. began crying at this point in the
interview. Detective Johnson then asked S.D., “And when you feel his penis,
describe that to me what you are feeling?” S.D. replied, “Very uncomfortable.”
Detective Johnson then asked, “How specifically does his penis feel?”          After
approximately a forty-five second pause, S.D. replied, “Very uncomfortable, like he
is not supposed to be doing that.” S.D. appeared to continue to cry during this pause
as evidenced by Detective Johnson asking her if she wanted him to find some tissue
and asking her if she was okay. Detective Johnson then asked S.D., “Was his penis
soft or was his penis hard?” Within a few seconds, S.D. replied, “[I]t was hard.”
Detective Johnson then asked S.D. if Appellant was “just laying there or was he
doing more than just laying on top of you?” S.D. asked Detective Johnson for
clarification by responding, “Like, was he moving?” After Detective Johnson
replied in the affirmative, S.D. replied, “Like I caught him three times doing that.”
                                         15
S.D. paused during the middle of this response, and she appeared to be continuing
to cry. Detective Johnson then asked S.D. for clarification as to how Appellant was
moving. S.D. initially replied that Appellant was moving “up and down.” However,
she did not complete her response until approximately one minute later after
Detective Johnson prompted her to provide a response after which she stated that
Appellant “would go like up on me and then he would go back down.” The admitted
portion of the interview concluded with Detective Johnson asking clarification
questions about what Appellant might have said during these events. S.D. also stated
that, on at least one occasion, she called for her mom to come to her room.
      As noted previously, S.D. answered the questions during the first section of
the admitted portion of the recorded interview quickly, directly, and calmly. None
of the questions during the first section appeared to create an emotional state that led
to an immediate, impulsive, or spontaneous response. Accordingly, the trial court
abused its discretion when it concluded that the first section of the recorded interview
constituted an excited utterance. See McCarty, 257 S.W.3d at 241–42; Apolinar,
155 S.W.3d at 186–87; Zuliani, 97 S.W.3d at 595–96.
      The second section of the admitted portion of the recorded interview presents
a more difficult question because of the emotions exhibited by S.D. in her responses
to Detective Johnson’s questions. The difficulty arises when we consider the
statement of the Court of Criminal Appeals in Zuliani that “[t]he critical
determination is ‘whether the declarant was still dominated by the emotions,
excitement, fear, or pain of the event’ or condition at the time of the statement.” 97
S.W.3d at 596 (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App.
1992) overruled on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim.
App. 1994)). There is no question that S.D. was dominated by emotions during the
second section of the interview. However, emotional domination alone is not
sufficient to constitute an excited utterance. Immediately after the sentence from
                                          16
Zuliani quoted above, the Court of Criminal Appeals wrote: “Stated differently, a
reviewing court must determine whether the statement was made ‘under such
circumstances as would reasonably show that it resulted from impulse rather than
reason and reflection.’” Zuliani, 97 S.W.3d at 596 (quoting Fowler v. State, 379
S.W.2d 345, 347 (Tex. Crim. App. 1964)). The court subsequently noted in Apolinar
that the excited utterance exception is “based on the assumption that the declarant is
not, at the time of the statement, capable of the kind of reflection that would enable
him to fabricate information.” Apolinar, 155 S.W.3d at 186 (citing Zuliani, 97
S.W.3d at 595).
      As we noted above, most of S.D.’s critical responses in the second section of
the recorded interview were preceded by relatively long pauses. When we consider
the McCarty factors to which we have already referred, we are constrained to hold
that the long pauses in S.D.’s responses during the second section of the reported
interview preclude a determination that her statements “resulted from impulse rather
than reason and reflection.” Zuliani, 97 S.W.3d at 596 (quoting Fowler, 379 S.W.2d
at 347) (internal quotation mark omitted). While her responses were obviously
emotional, they were not spontaneous enough to avoid the possibility of fabrication
as required by McCarty. See McCarty, 257 S.W.3d at 241. Accordingly, the trial
court abused its discretion when it determined that the admitted portions of the audio
recording of the second section of S.D.’s interview with Detective Johnson were
admissible under the excited utterance exception to the hearsay rule.
      On appeal, the State contends that the admitted portion of S.D.’s recorded
interview was not hearsay under TEX. R. EVID. 801(e)(1)(B) because it contained a
prior consistent statement that was offered to rebut a claim of recent fabrication. We
disagree. Rule 801(e)(1)(B) gives substantive, non-hearsay status to prior consistent
statements of a witness proffered to rebut an express or implied charge against the
declarant of recent fabrication or improper influence or motive. Hammons v. State,
                                          17
239 S.W.3d 798, 804–05 (Tex. Crim. App. 2007). There are four requirements that
must be met for prior consistent statements to be admissible: (1) the declarant must
testify at trial and be subject to cross-examination; (2) there must be an express or
implied charge of recent fabrication or improper influence or motive of the
declarant’s testimony by the opponent; (3) the proponent must offer a prior statement
that is consistent with the declarant’s challenged in-court testimony; and (4) the prior
consistent statement must be made prior to the time that the supposed motive to
falsify arose. Id. In this case, Appellant did not challenge S.D.’s in-court testimony.
Instead, Appellant challenged S.D.’s initial reports of the allegations as being
fabricated.   Accordingly, S.D.’s report to Detective Johnson was not a prior
consistent statement when compared to her in-court testimony. If anything, it was a
prior inconsistent statement when compared to her in-court testimony.
      Appellant’s third issue also concerns the excited utterance exception.
Appellant asserts that the trial court erred when it allowed Nurse Jordan to testify
about the allegations that S.D. reported to her. As noted previously in this opinion,
Nurse Jordan provided a summation of the details that S.D. had related to her during
their meeting. The prosecutor prefaced the offer of this testimony with the following
questions asked of Nurse Jordan:
             Q. Now, when she started, at some point did she tell you about
      the actual acts that her stepfather had done to her?

              A. Yes.

            Q. Okay. And when she started to tell you about those acts, did
      you notice any, sort of, change in her emotional state?

             A. It was difficult for her to speak of these things. She was -- her
      voice became quieter, her head, kind of -- you know, she -- it was
      difficult. You know, it was not a conversation about, what are you
      going to have for lunch, it was a hard conversation about uncomfortable


                                          18
      things. And she became quiet, there were a few tears. She wasn’t
      sobbing, but definitely emotional during that time.

            Q. Okay.

             A. And, you know, it was -- it’s a difficult conversation, it was
      difficult for her.

            Q. So would you say that the stress of having to talk about those
      events was causing her some emotional distress?

            A. Yes.

            Q. And you could visibly see that?

            A. Yes, there were tears.

      Unlike the situation involving the audio recording of S.D.’s actual voice, the
trial court only had Nurse Jordan’s secondhand account of S.D.’s emotional state at
the time she reported the allegations. Although Nurse Jordan testified that “there
were a few tears,” S.D. was not sobbing. We conclude that the trial court abused its
discretion by admitting Nurse Jordan’s summation as an excited utterance in the
absence of evidence that S.D. was dominated by emotion at the time of the report,
coupled with the delay between the conduct and her statement about it to
Nurse Jordan.
      The State also contends that S.D.’s report to Nurse Jordan was admissible
under TEX. R. EVID. 803(4) as a statement for the purpose of medical diagnosis or
treatment. We disagree. In order for a statement to be admissible under Rule 803(4),
it must be pertinent to diagnosis or treatment. Taylor v. State, 268 S.W.3d 571, 591
(Tex. Crim. App. 2008). Nurse Jordan testified that she visited with S.D. because a
school counselor who had started talking with S.D. had another appointment.
Nurse Jordan took over for the school counselor “to finish the conversation to have


                                         19
my arm around her shoulder kind of thing.” There simply was no testimony that
S.D. made the statement to Nurse Jordan for the purpose of medical diagnosis or
treatment.
      The State additionally contends that Nurse Jordan’s summation either was not
hearsay under TEX. R. EVID. 801(e)(1)(B)—because it was a prior consistent
statement offered to rebut a claim of recent fabrication—or was admissible under
TEX. R. EVID. 803(24) as a statement against interest. We will address these
additional contentions below.
      Appellant’s fifth issue addresses the admissibility of Detective Johnson’s
summation of the allegations that S.D. reported to him. The State sought to offer the
summation as “information that [Detective Johnson] used for going to the next step
in [his] investigative process.” Appellant cites Sandoval for the proposition that
Detective Johnson’s summation exceeded the permissible bounds of out-of-court
statements about which a police officer may testify as “information acted upon” in
his investigation. Sandoval, 409 S.W.3d at 281–83. We agree. It is not a violation
of the hearsay rule for a trial court to admit out-of-court statements that are offered
to explain the reason that a defendant became a suspect in an investigation. Id. at
281–82. An officer should be allowed to testify as to the reasons for his behavior,
his presence, and his conduct so that his involvement does not appear to have been
simply by happenstance. Schaffer v. State, 777 S.W.2d 111, 114–15 (Tex. Crim.
App. 1989). The statement, however, must be a general one and not one in which
the officer gives specific details of the information received. Sandoval, 409 S.W.3d
at 282.
      The police officer in Sandoval gave a “complete account” of the victim’s
description of the sexual assault as “information he acted upon.” Id. at 282–83. On
appeal, the court determined that the officer’s testimony was not merely a
generalized description of possible criminality that explained how the defendant
                                          20
came to be a suspect but, rather, contained specific details about the alleged sexual
assault that he obtained from interviewing the victim and her mother and from
reading their written statements. Id. at 283–84. The court held that the officer’s
testimony constituted hearsay evidence that went far beyond the permissible general
description of information received about possible criminality and, instead, provided
specific details and descriptions of the defendant’s involvement in the sexual assault.
Id. at 284. As was the case in Sandoval, Detective Johnson’s summation of S.D.’s
allegations against Appellant also provided specific details rather than a generalized
description of criminality.    Accordingly, his summation of S.D.’s allegations
exceeded the permissible bounds of background information from a police officer.
      As was the case with Nurse Jordan’s summation of S.D.’s report to her, the
State contends that Detective Johnson’s summation was either a prior consistent
statement offered to rebut a claim of recent fabrication under Rule 801(e)(1)(B) or a
statement against interest under Rule 803(24). We disagree with both contentions.
We previously have determined that S.D.’s report to Detective Johnson was not
admissible under Rule 801(e)(1)(B) as a prior consistent statement of a witness. The
same rationale applies to S.D.’s statement to Nurse Jordan.
      The State cites Glover v. State, 102 S.W.3d 754, 766 (Tex. App.—Texarkana
2002, pet. ref’d), for the proposition that S.D.’s reports to Nurse Jordan and
Detective Johnson were admitted as statements against S.D.’s social interest. Glover
involved a fourteen-year-old girl who disclosed to her mother that she was a willing
participant in sexual relations with a twenty-six-year-old man. 102 S.W.3d at 766.
The court concluded that the statement was against the victim’s social interest
because it would “subject her to disgrace in the eyes of her mother.” Id. Unlike the
declarant in Glover, S.D. was not a willing participant in the instances of Appellant’s
sexual contact. Accordingly, S.D.’s reports of Appellant’s conduct would not have


                                          21
made her “an object of hatred, ridicule, or disgrace” as was the case in Glover. See
TEX. R. EVID. 803(24); Glover, 102 S.W.3d at 766.
      We have determined that the admitted portions of S.D.’s recorded interview
and Nurse Jordan’s and Detective Johnson’s summations of S.D.’s reported
allegations constituted hearsay and that no offered exceptions exist to allow for their
admission. We now must determine whether the admission of this hearsay evidence
was harmless.
      The violation of an evidentiary rule that results in the erroneous admission of
evidence constitutes nonconstitutional error. See TEX. R. APP. P. 44.2(b); Geuder v.
State, 142 S.W.3d 372, 376 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). As
nonconstitutional error, we must review the erroneous admission under Rule 44.2(b)
of the Texas Rules of Appellate Procedure. TEX. R. APP. P. 44.2(b); see Campos v.
State, 317 S.W.3d 768, 779 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (the
erroneous admission of a hearsay statement constitutes nonconstitutional error).
When an appellate court applies Rule 44.2(b), it must disregard a nonconstitutional
error unless the error affects the appellant’s substantial rights. Barshaw v. State, 342
S.W.3d 91, 93 (Tex. Crim. App. 2011). An appellate court should not overturn a
criminal conviction for nonconstitutional error “if the appellate court, after
examining the record as a whole, has fair assurance that the error did not influence
the jury, or influenced the jury only slightly.” Id. (quoting Schutz v. State, 63 S.W.3d
442, 444 (Tex. Crim. App. 2001) (internal quotation mark omitted). Our focus is
“not on whether the outcome of the trial was proper despite the error, but whether
the error had a substantial or injurious effect or influence on the jury’s verdict.” Id.
at 93–94; See Kinsey v. State, No. 11-12-00102-CR, 2014 WL 2459690, at *12 (Tex.
App.—Eastland May 22, 2014, no pet.) (mem. op., not designated for publication).
The appellate court is to review the entire record in an effort to determine the effect


                                          22
that the wrongfully admitted evidence had on the verdict. Barshaw, 342 S.W.3d at
93–94; Kinsey, 2014 WL 2459690, at *12.
      When we determine the effect that the wrongfully admitted evidence had on
the verdict, we consider all the evidence that was admitted at trial, the nature of the
evidence that supports the verdict, the character of the alleged error, and how the
evidence might be considered in connection with other evidence in the case.
Barshaw, 342 S.W.3d at 94. Further, we may consider the trial court’s instructions
to the jury, the theories advanced in the case by the parties, closing arguments, jury
voir dire, and the extent to which the State emphasized the error. Id.; see also Kinsey,
2014 WL 2459690, at *12.
      A conviction must be reversed for nonconstitutional error if the reviewing
court has grave doubt that the result of the trial was free from the substantial effect
of the error. “Grave doubt” means that, in the judge’s mind, the question is so evenly
balanced that he feels that he is in virtual equipoise as to the harmlessness of the
error. Barshaw, 342 S.W.3d at 94. If such a grave doubt exists as to a defendant,
then the defendant must prevail. Id.
      We initially note that Nurse Jordan’s and Detective Johnson’s summations
referenced the allegation that Appellant touched S.D.’s breast. These portions of the
summations obviously did not influence the jury because Appellant was acquitted of
that charge. However, the remaining portions of the summations contained the same
allegations that were referenced in the inadmissible portion of S.D.’s recorded
interview that was played for the jury.
      Any error in admitting these items of hearsay is harmless if other evidence
proving the same facts was properly admitted elsewhere. Brooks v. State, 990
S.W.2d 278, 287 (Tex. Crim. App. 1999); Land v. State, 291 S.W.3d 23, 28 (Tex.
App.—Texarkana 2009, pet. ref’d).         Accordingly, we focus on the remaining
evidence offered at trial. We primarily focus our analysis on S.D.’s trial testimony.
                                          23
On direct examination, S.D. testified that Appellant “would come to [her] room and
lay next to [her]. You know, I would tell him to leave.” This report, coupled with
the report to her mother about Appellant hugging her and touching her breast, led to
S.D. moving to her aunt’s house for the summer. When S.D. moved back to her
mother’s house, she requested her mother to put a lock on her door for the following
reason: “That way I have my own privacy. And I’ll feel safer for me, you know, for
my protection.” However, S.D. also admitted telling Detective Johnson that the lock
was placed on her door because of Appellant and that this statement to Detective
Johnson was “the truth.”
      The following dialogue occurred when the prosecutor asked S.D. whether
Appellant ever made her feel uncomfortable:
            A. Just the times that, you know, where -- he came in my room
      when my mom wasn’t home and, you know, he would come in. You
      know, I would tell him, “I don’t want you in my room. If my mom’s
      not here or anybody’s not in the house, I would like it if you would just
      leave my room.” I said that that would make me feel better. And he
      would leave my room until my mom got back home from work, which
      would probably [be], like, around 3:00 or 2:00.

            Q. Okay. Was there ever a time where he laid in bed with you?

            A. Just once.

            Q. What did he do that time, that you remember? What did he
      do?

             A. He would lay next to me and hug me. And, you know, I would
      tell him -- I said, “I don’t feel right. Can you just leave my room,
      please?” And, you know, he would leave my room. Every time I would
      tell him leave my room, he would leave my room.

            Q. So there were times where he would come get in your bed and
      hug you in your bed?


                                         24
              A. Not all the time.

              Q. Were there sometimes that he did that?

              A. Sometimes, but, like, not all the time.

        S.D. subsequently described one instance when Appellant lay on top of her in
her bedroom. She initially testified at trial that she felt Appellant’s penis, but she
denied that it was hard. However, she confirmed that she felt Appellant moving up
and down on her body and that she felt his penis on her “butt.” S.D. also testified
that “it happened” and that what she told the police was true “[o]n certain parts.”
S.D.’s direct examination concluded with her admitting that she told Detective
Johnson that Appellant’s penis was hard and that her statement to that effect was
true.
        Although S.D. testified that she only remembered one instance of Appellant
touching her with his penis, she also testified that she told the truth during her police
interview. However, we have held that the only evidence of what she actually told
Detective Johnson about any criminal conduct constituted inadmissible hearsay.
Although S.D. testified that there was more than one time that Appellant got in her
bed and hugged her, that testimony does not pertain to the charged criminal conduct.
Accordingly, when we eliminate the audio recording and Nurse Jordan’s and
Detective Johnson’s summations, there was no other evidence from any other source
to establish that Appellant committed the conduct on more than one occasion; he
was convicted for committing such conduct on more than one occasion. Further, the
jury, on more than one occasion, heard the audio recording and S.D.’s voice on it.
Additionally, in argument, the prosecutor emphasized the contents of the
inadmissible portions of the audio recording. Under this record, we cannot say that
we have fair assurance that the error did not influence the jury or that the error


                                           25
influenced the jury only slightly. Accordingly, we sustain Appellant’s third, fourth,
and fifth issues.
                                   Opinion Testimony
      In his sixth issue, Appellant argues that the trial court erred when it allowed
Detective Johnson to offer his opinion regarding Appellant’s role in S.D.’s absence
at the start of trial. In light of our disposition of Appellant’s third, fourth, and fifth
issues, we need not address Appellant’s sixth issue.


                                     This Court’s Ruling
      We reverse the judgments of conviction on Counts Two and Three and remand
the cause to the trial court for a new trial on those two counts.




                                                JOHN M. BAILEY
                                                JUSTICE


May 14, 2015
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




                                           26
