                                 IN THE
                         TENTH COURT OF APPEALS

                                 No. 10-11-00044-CR

ARON SATCHELL,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2010-225-C2


                          MEMORANDUM OPINION


      In a seven-count indictment, Appellant Aron Satchell was charged with one

count of continuous sexual abuse of a child, three counts of indecency with a child by

contact, and three counts of sexual assault of a child. Before trial, the State abandoned

one of the indecency-with-a-child counts and one of the allegations in the continuous-

sexual-abuse-of-a-child count.   Satchell then pleaded not guilty to the remaining

charges, and the case was tried to a jury. A jury found Satchell not guilty on the

continuous-sexual-abuse-of-a-child count and all three sexual-assault-of-a-child counts
but found him guilty on the remaining two indecency-with-a-child counts and assessed

his punishment at thirteen years’ confinement for each count. The trial court sentenced

Satchell accordingly, ordering that the sentences run consecutively.                This appeal

ensued. In his sole issue, Satchell contends that the trial court erred in refusing to admit

the alleged victim’s diary as an exhibit. We will affirm.

        The alleged child victim in this case kept a diary. The child testified that a diary

was where a person confides her private thoughts; however, nowhere in her diary did

she mention anything about Satchell abusing her. More specifically, the child stated

that on October 28, 2008, she wrote that she had had an exciting day; she did not say

anything about any kind of sexual abuse. In that part of her diary, she generally

seemed happy.       On October 30, 2008, she wrote basically about school; she wrote

nothing about any sexual abuse.1 On October 31, 2008, she wrote that the day started

off “okay” but that later, everything felt wrong because a young man that she was

interested in was acting “funny.” The child admitted once again that she mentioned

nothing in the diary about any kind of sexual abuse. The child stated that she talked

about her feelings for the young man in many places in her diary. She never expressed

any type of pain and suffering or any type of suicidal thoughts in the diary. She never

talked about being hurt by anything Satchell did to her.

        On November 1, 2008, the child again wrote nothing about any type of sexual

abuse. The following exchange then occurred:



        1The indictment alleged that one of the indecency-with-a-child counts occurred on or about
October 30, 2008.

Satchell v. State                                                                          Page 2
               Q.    Okay. In fact, what it says is, it says, my thoughts have been
        just wondering about what the next two weeks --

                       [Prosecutor]: Your Honor, I’m going to object to him
        reading it. If he wants to ask her to read it or ask her if that’s what it says.

              Q.    (BY [Defense Counsel]) Would you read -- would you read
        what you wrote November 1st to the jury?

                         [Prosecutor]: It’s not in evidence.

                    A.   My thoughts have been --

                       THE COURT: I’ll sustain the objection. The document is not
        in evidence and the witness is prohibited from reading from it at this
        point in time.

                    [Defense Counsel]: Your Honor, at this time I would offer
        Defense Exhibit No. 1.

                         (Defendant’s Exhibit 1 offered.)

                     [Prosecutor]: Your Honor, we would object. That’s hearsay.
        There’s entries from other individuals in there, not just this particular
        witness.

                         THE COURT: I’ll sustain the objection.

                         [Defense Counsel]: Judge, may I approach?

                         THE COURT: For what purpose?

                         [Defense Counsel]: Discussing the exhibit.

                         THE COURT: No, you may not. Go ahead.

                         [Defense Counsel]: Okay.

               Q.    (BY [Defense Counsel]) So -- but, once again, in here you
        don’t in any way talk in any way about any kind of sexual abuse, do you?

                    A.   No, sir.


Satchell v. State                                                                          Page 3
               Q.    Okay. Now, there’s another entry from November 4th of
        2008; is there not? Can you read that? Okay. So, once again, on
        November 4th of 2008, you don’t discuss any kind of sexual abuse, do
        you?

                    A.   No, sir.

              Q.    In fact, nowhere in this diary at all do you discuss in any
        way the Defendant is sexually abusing you, do you?

                    A.   No, sir.

              Q.   Okay. Now, would you please point to me in this diary
        where someone else has written in the diary?

                    A.   Yes, sir.

                    Q.   Where is that?

                    A.   Right here.

              Q.     Okay. And that’s on October 10th of -- I mean, excuse me --
        February 10th of 2008?

                    A.   Yes, sir.

                      [Defense Counsel]: Judge, I move to admit this exhibit with
        that portion redacted from the exhibit.

                         (Defendant’s Exhibit 1 offered.)

                     [Prosecutor]: I believe there’s other places where other
        individuals have written in there, Your Honor.

                         [Defense Counsel]: If she could show me.

                         [Prosecutor]: And it’s still all hearsay.

                         [Defense Counsel]: It’s an exception to the hearsay.

                         THE COURT: What exception?




Satchell v. State                                                                   Page 4
                       [Defense Counsel]: It’s her – it’s a statement of her present
         sense impression of her present state of mind, Judge. It’s a prior recorded
         recollection because she can’t remember it. It comes in under about two
         or three different hearsay exceptions. It’s present sense impression, a
         statement describing or explaining an event or condition made while the
         then existing mental, emotional, or physical condition. All throughout
         this diary she’s talking about the way she feels and stuff like that. It’s
         throughout the diary, Judge.

                         THE COURT: The State’s objection is sustained.

                         [Defense Counsel]: Okay.

                Q.     (BY [Defense Counsel]) Now I want to -- on November 21st
         of 2008, you make some notations in your diary; is that correct? Is there
         anything in there about any sexual abuse from Aron Satchell?

                    A.   No, sir.

                Q.     Okay. Now, you also made notations on November 25th of
         2008, correct? You also made notations on May 13th of 2009, correct?

                    A.   Yes, sir.

                 Q.    Okay. And on -- there’s also prior -- prior to that one, May
         13, ’08, one of May 13, ’09. And anywhere in this diary do you discuss at
         all any sexual abuse by Aron Satchell?

                    A.   No, sir.

         Assuming, without deciding, that the trial court erred by refusing to admit the

alleged child victim’s diary as an exhibit, we conclude that any error was harmless. We

must disregard non-constitutional errors that do not affect a criminal defendant’s

“substantial rights.”       See TEX. R. APP. P. 44.2(b).   Under this standard, an error is

reversible only when it had a substantial and injurious effect or influence in

determining the jury’s verdict. Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App.

2008).    We should not overturn the conviction if we have fair assurance from an

Satchell v. State                                                                      Page 5
examination of the record as a whole that the error did not influence the jury, or had but

slight effect. Id. In assessing the likelihood that a jury’s decision was adversely affected

by the error, we consider the entire record, including any testimony or physical

evidence admitted, nature of the evidence supporting the verdict, character of the

alleged error, and how it might have been considered in connection with other

evidence. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also

consider jury instructions, the State’s theory, any defensive theories, closing argument,

voir dire, and whether the State emphasized the error. Id. at 355-56.

        Satchell states in his brief that the predominant evidence against him was the

child’s testimony and that he was using the child’s diary to attack her credibility and

persuade the jury that she might not be telling the truth. Satchell argues that the diary

was “very probative evidence” because over the seven-month period during which he

was alleged to have been molesting the child, the entries in her diary mentioned

nothing about sexual abuse but were only about “young girl romance, how she felt

about school and friends, etc.” Even without admitting the child’s diary as evidence,

however, Satchell effectively made his point.

        During Satchell’s cross-examination of the child, he repeatedly questioned her as

to whether she wrote in her diary about any kind of sexual abuse, and the child

repeatedly admitted that there were no entries in the diary relating to her claims of

sexual abuse. The child explained that in many places in the diary, she talked about her

feelings for a young man that she was interested in.         Additionally, during closing

argument, defense counsel argued to the jury:

Satchell v. State                                                                     Page 6
               Okay. Also, I questioned her about the diary, y’all. What is a diary
        for? Why would a child use a diary? Why do people keep diaries? To
        record your innermost thoughts, to record what’s going on in life that you
        don’t really share with the outside world. In this indictment, y’all, the
        indecency counts cover acts from October 15 of 2008 through January of
        2009. Y’all saw me talk to her about the specific dates of those entries in
        the diaries all throughout October, all throughout November, all
        throughout December and all throughout January. There’s nothing in the
        diary -- nothing about any kind of abuse, nothing about being suicidal
        that she talked about. None of that in that diary at all.

        In light of the foregoing, we overrule Satchell’s sole issue and affirm the trial

court’s judgment.




                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 23, 2012
Do not publish
[CRPM]




Satchell v. State                                                                     Page 7
