                                   NO. 07-08-0353-CR

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL A

                                  OCTOBER 7, 2009
                           ______________________________

                             GINGER BROWN, APPELLANT

                                            V.

                           THE STATE OF TEXAS, APPELLEE
                         _________________________________

              FROM THE 31ST DISTRICT COURT OF LIPSCOMB COUNTY;

                   NO. 1152; HONORABLE STEVEN EMMERT, JUDGE
                         _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Appellant, Ginger Sue Brown, was convicted of aggravated sexual assault of a child1

and subsequently sentenced to 10 years in the Institutional Division of the Texas

Department of Criminal Justice. By two issues, appellant contends that the trial judge

committed reversible error by 1) allowing hearsay testimony of a forensic interviewer to be

admitted before the jury, and 2) refusing to admit the previously recorded statement of

appellant’s co-defendant into evidence. We affirm.



       1
           See TEX . PENAL CODE ANN . § 22.021 (Vernon Supp. 2008).
                           Factual and Procedural Background


       On March 5, 2006, Jimmy Brown, the husband and co-defendant of appellant, was

arrested by Lipscomb County Deputy Jessica Kay for violating a protective order. While

being transported to jail, Brown began relaying information to Kay of an alleged sexual

assault of appellant’s son, Joey, that had occurred on or about March 2, 2002. After

arriving at the Lipscomb County jail, Brown gave two written statements and a video taped

statement to deputies. After receiving this information, the Lipscomb County Sheriff’s

Office dispatched another deputy, Jason McCarthy, to pick up the appellant for

questioning. Upon being brought to the jail, and after being advised of her right to remain

silent, appellant gave two written statements and a video taped statement admitting her

participation in the sexual assault. During her interviews, appellant stated that it was

Jimmy’s idea for her to have sex with her son. She further stated that Jimmy was

physically and emotionally abusive to her and the children. The statements did not,

however, contend that on the night in question that Jimmy physically forced her to have sex

with her son.


       At trial, in addition to the deputies who took the statements in the case, the State

produced the testimony of Shelly Bohannon, a forensic interviewer with the Bridge

Children’s Advocacy Center in Amarillo. Bohannon was qualified as an expert forensic

interviewer. She testified about her interviews of Joey. It was a portion of Bohannon’s

testimony that gave rise to appellant’s first contention.




                                             2
       The State also presented the testimony of the co-defendant, Jimmy, to the jury.

Jimmy had given a number of statements to the authorities that contained inconsistencies.

During appellant’s presentation of the evidence, Jimmy was recalled to the witness stand

and those inconsistencies were explored. At one point, appellant attempted to admit the

video taped statement given by Jimmy. From the record, it appeared that the offer was

made in an attempt to impeach Jimmy’s testimony. The trial court sustained the State’s

objection to the introduction of the statement. The exclusion of the video taped statement

is the basis of appellant’s second contention.


       We disagree with appellant’s contentions and will affirm the judgment of the trial

court. Both of appellant’s contentions deal with the trial court’s evidentiary rulings.


                                     Standard of Review


       We review a trial court's decision regarding the admissibility of evidence under an

abuse of discretion standard. See Cameron v. State, 241 S.W.3d 15, 19 (Tex.Crim.App.

2007). Because trial courts are in the best position to decide questions of admissibility,

appellate courts will uphold a trial court's admissibility decision when that decision is within

the zone of reasonable disagreement. Id. An appellate court may not reverse a trial

court's decision regarding the admissibility of evidence solely because the appellate court

disagrees with the decision. Id. A trial court abuses its discretion when its decision lies

outside the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372,

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




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                         Hearsay Objection to Bohannon’s Testimony


        Appellant lodged hearsay objections to much of Bohannon’s testimony. To properly

consider these objections, we must first determine whether or not Bohannon was offered

as an expert. An expert is someone whose “scientific, technical or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine a fact in

issue, . . . .” See TEX . R. EVID . 702.2 The record reflects that the State spent a substantial

amount of testimonial time going over the witness’s education, training, and experience as

a forensic interviewer. Additionally, Bohannon testified about the procedure for conducting

a valid forensic interview, especially as it related to child victims of abuse. After a hearing

outside the presence of the jury, the trial court accepted Bohannon as an expert witness

on the subject of forensic interviews. Additionally, the State had filed a notice pursuant to

the Texas Code of Criminal Procedure to allow Bohannon’s testimony to be received as

an “outcry witness.” See TEX . CRIM . PROC . CODE ANN . art. 38.072 (Vernon 2005). At the

conclusion of the hearing, the record reflects that the trial court had ruled that Bohannon’s

testimony could also be received as an “outcry witness.” Appellant’s objections as to

hearsay purport to find error with each ruling by the trial court.


        The following is the portion of Bohannon’s testimony that appellant objects to on

appeal. (All questions were by the State on direct examination.)


        Q. Okay. So he said that his mom had not abused him, is that right?



        2
            Further references to the Texas Rules of Evidence will be by reference to “Rule
___.”

                                               4
A. That’s correct. That’s what he said.

Q. Okay. Did he talk about seeing the Defendant’s lingerie?

A. He talked about some–some clothes that may have holes in them, but I
don’t know if he was talking about lingerie or day wear or really what that
was.

Q. Did he ever express to you concerns that his mother would walk around
in provocative clothing?

A. No.

Q. Did he ever say he saw her in the clothing?
A. In provocative, no.


Q. Okay. Now did he discuss the role that the Co-Defendant Jimmy Brown
played?

A. In which?

Q. In the sexual assault.

A. He - - he talked about Jimmy having his mother, Joey’s mother go and get
him out of his bed and bring him into her bedroom and place him in the bed
with her and that he sat in a chair or recliner next to the bed and just
watched.

Q. And he said he was just watching. Did he say what his mother was
doing?

A. He - - he said he couldn’t remember.

Q. Did he ever give you any details as to the sexual assault by the Defendant
and the Co-Defendant against him?

A. No, he never did.

Q. Is it - - but he never specifically said about his mother’s private parts or
anything happening to him by his mother; is that correct?

A. No he denied that.



                                      5
       Q. Okay. Ms. Bohannon, based on your training and experience and the
       number of forensic interviews that you have had with children, is it common
       or uncommon for children not to disclose to you what’s been happening?

       A. We see that pretty frequently.

       Q. Okay. Is it common or uncommon for children to only partially disclose?

       A. We see that quite a bit too, yes.


       Initially, we observe that whether or not Bohannon was an “outcry witness” may be

determined by whether or not the statements made by Joey were sufficient to describe the

alleged sexual assault. See TEX . CRIM . PROC . CODE ANN . art. 38.072 § 2. A review of the

objected to testimony would lead to the conclusion that it did not describe the assault, in

fact, Joey said he could not remember or it did not happen. See Garcia v. State, 792

S.W.2d 88, 90-91 (Tex.Crim.App. 1990) (stating that the statement to an outcry witness

must describe the alleged offense in some discernable manner as opposed to a general

allusion that something in the area or child abuse was going on). Here the child did not

give any testimony that could be viewed to sustain the requirement of the statute.


       However, this is not the end of our inquiry. The State posits that the objected to

evidence was not offered for the truth of the matters asserted, rather they were offered to

establish the underlying facts or data to support the expert’s opinion about the reluctance

of the victim to testify. In this regard it appears that the jury could use this information to

evaluate Bohannon’s testimony that child victims commonly are reluctant to disclose the

facts of the assault and, in fact, may deny or only partially disclose any information about

the event. See Rule 705(a); Austin v. State, 222 S.W.3d 801, 812 (Tex.App.–Houston [14th

Dist.] 2007, pet. ref’d). Accordingly, the evidence was admissible for that purpose.

                                              6
       Appellant, however, contends that, even if it was admissible for that purpose, there

was a danger that the jury would use the information for other purposes than the evaluation

of the expert’s opinion. See Rule 705(d). Our review of the record does not support

appellant’s contention. This evidence was given to explain the victim’s reluctance to

discuss the events at issue. Further, appellant’s statements admitting the sexual assault

were admitted prior to Bohannon’s testimony. Therefore, there could be little danger of the

jury using the underlying interview to convict appellant of the offense for which she had

already confessed in written and video taped statements. Finally, the record further

reflects that the victim later testified before the jury and testified to some of the events of

the assault but again stated that he could not remember some of the events. Based on

the record before us, we cannot say the trial court abused its discretion in admitting the

testimony of Bohannon. See Cameron, 241 S.W.3d at 19. Accordingly, appellant’s first

issue is overruled.


                      Previously Recorded Statement of Jimmy Brown


       Appellant next contends that the trial court committed reversible error in refusing to

admit the previously recorded statement of Jimmy Brown into evidence. According to

appellant, the statement was admissible under the provisions of Rule 803(24) as an

admission against interest. See Rule 803(24). However, at trial appellant offered the

statement as a prior inconsistent statement. See Rule 801(e)(1)(A). As such, appellant’s

complaint on appeal does not comport with his objection at trial. See Reyna v. State, 168

S.W.3d 173, 179 (Tex.Crim.App. 2005) (an offer of evidence under one theory does not

preserve an appeal that the evidence was admissible under a different theory).

                                              7
Accordingly, nothing has been preserved for appeal. See TEX . R. APP. P. 33.1(a)(1)(A).

Therefore, appellant’s second issue is overruled.


                                      Conclusion


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




                                        Mackey K. Hancock
                                            Justice




Do not publish.




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