Affirmed and Memorandum Opinion filed May 14, 2019.

In The 

Fourteenth Court of Appeals 

NO. 14-18-00206-CR

CHARLES RAY IRVING, Appellant 

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the 174th District Court 

Harris County, Texas 

Trial Court Cause No. 1464143 

MEMORANDUM OPINION 

In this appeal from a conviction for continuous sexual abuse of a child, the 

sole question presented is whether the trial court abused its discretion when it 

admitted certain testimony about a note that was never produced into evidence. 

The note was allegedly written by the complainant, a ten-year-old boy, and it 

came to the attention of one of his teachers at school. When the teacher later testified 

at appellant’s trial, the following exchange occurred during the prosecutor’s direct 

examination: 
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Q. Okay. All right. I want to direct your attention to February of 

2014. Do you remember an incident concerning a note [the 

complainant] had made? 

A. Yes. There was a note that was that he wrote— 

 DEFENSE: Your Honor, may we approach? 

 COURT: You may. Do you want this on the record? 

DEFENSE: Yes, on the record. I had to ask her a quick question. 

 COURT: All right. We’re on the record. 

DEFENSE: Since they don’t have the note, I have not been privy 

to review the note. [The teacher] doesn’t have the 

note. Anything he testifies about that should be 

inadmissible. It’s hearsay. I have not seen it. I don’t 

know what it is. And I think beyond the question— 

 COURT: Do you intend to ask him what the note said? 

STATE: No. I actually intend to ask him about his reaction 

to the note because— 

 COURT: All right. You can proceed in that fashion. 

 STATE: Okay. 

 DEFENSE: All right. 

Q. All right, [teacher]. Just to be clear before the jury, this note 

we’re referring to, you don’t have a copy of that note? 

A. No. 

Q. And you’ve never provided me a copy of that note? 

A. No, ma’am. 

Q. Okay. And, in fact, we have talked with the principal— 

A. Yes. 

Q. —at your school and she’s indicated that she’s even looked and 

cannot find this note, correct? 

A. Yes. 

Q. So we won’t get into what exactly what was written on the note, 

but based on your— 
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DEFENSE: Your Honor, I’m going to still renew my objection 

on this because we don’t know what was contained 

in that note. And anything— 

 COURT: What is the objection? 

DEFENSE: That it’s all hearsay, Your Honor, because 

whatever—he can make up whatever he wants to in 

that note and be extremely prejudicial— 

COURT: No question has yet been asked what is in the note. 

If that question is asked, then the objection is 

sustained. But that question hasn’t been asked. 

DEFENSE: But, your Honor, I’m renewing my objection 

because I don’t know what’s in the note. I have no 

idea what to, you know, ask him about it because I 

have never seen the note and the State has never 

seen the note.1

 COURT: What is the specific objection, the legal objection? 

 DEFENSE: Irrelevant. 

 COURT: It’s overruled. You may proceed. 

 STATE: Thank you, Your Honor. 

Q. All right. So again, we don’t have the note, not talking about 

what exactly was on the note, but what was your response to the 

note? What concerns did you have for [the complainant] based 

on that note? 

A. Okay. Another teacher, which was in ancillary, saw the note first. 

And then she brought it to my attention. And then immediately 

when I saw it, I said, you know what, we need to take it to the 

principal. And we took it to the principal right away. And then 

us—the three of us agreed that hey, there’s something wrong 

with the way this picture looks. In other words, it demonstrated— 

Q. We can’t get into what exactly is on it, but— 

 

1 The court reporter identified this speaker as the prosecutor, but based on the context, the 

speaker must be defense counsel.
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A. It was obvious to us that something was wrong. We immediately 

called Children’s Protective Services. We followed through with 

the process. 

DEFENSE: I’m renewing my objection, Your Honor. It’s 

prejudicial and outweighs any probative value. I 

have not seen this note. We don’t know what it is. 

COURT: The objection is overruled. Do you have anything 

else of this witness? 

 STATE: Very briefly, Your Honor. 

Q. So after conferencing with the other teacher and principal, you 

said you contacted CPS. So is it fair to say that this note gave you 

concern about something possibly going on with [the 

complainant] that needed to be addressed? 

A. Yes. It gave us—it gave us a red light, a flag, we would say hey— 

 DEFENSE: Again, Your Honor, I renew my objection. 

COURT: The objection is sustained to that response and that 

question. You may ask your next. 

Q. And so what happened next? 

A. The next thing, we called CPS, we informed them, we informed 

the grandmother as well, and we did due process in a situation 

like that. We got him to see, I believe, a counselor or social 

worker. And we did the best that we can with the situation, we 

worked with him, and that’s what we did from there. 

Q. All right. And earlier the jury heard from [the complainant’s] 

grandmother. After you conferenced with the principal, the 

teachers, and CPS was called in, to your knowledge, was [the 

grandmother] brought in on the concerns that you had at the 

school? 

A. As far as I know, the principal took over from thereon because 

she communicated with the grandmother. 

 STATE: Pass the witness, Your Honor. 

Based on this passage, appellant argues that the trial court abused its discretion 

because it allowed the teacher to testify about inadmissible hearsay. This argument 

fails because no hearsay was admitted at all. 
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Hearsay is an out-of-court statement that is offered into evidence for the truth 

of the matter asserted. See Tex. R. Evid. 801(d). There were no such statements in 

this case because the teacher never testified about the contents of the note. Instead, 

the teacher testified about the effect of the note, explaining that the note was so 

alarming to him that he reported it to the principal and to CPS. That testimony does 

not amount to hearsay. See Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 

1995) (documents were not hearsay because they were offered to show how the 

defendant became a suspect in the investigation). 

Appellant argues that the opposite conclusion is required by Sandoval v. State, 

409 S.W.3d 259 (Tex. App.—Austin 2013, no pet.), but the facts of that case are 

remarkably different. The witness there testified about the substance of the victim’s 

written statements, which provided “a complete account” of the offense with 

“specific details.” Id. at 283. By contrast, the teacher here did not testify about the 

substance of the complainant’s note, nor did the teacher provide any details about 

the charged offense. 

Appellant also complains that the teacher testified about “backdoor hearsay” 

when he said that “there’s something wrong with the way this picture looks” and “it 

was obvious to us that something was wrong.” 

Backdoor hearsay refers to an artful method of question and answer that “does 

not produce hearsay in the classic or textbook sense,” but that nevertheless violates 

the hearsay rule because it creates “an inescapable conclusion that a piece of 

evidence is being offered to prove statements made outside the courtroom.” See 

Schaffer v. State, 777 S.W.2d 111, 113–14 (Tex. Crim. App. 1989). The test for 

backdoor hearsay “necessarily turns on how strongly the content of the out-of-court 

statement can be inferred from the context.” See Head v. State, 4 S.W.3d 258, 261 

(Tex. Crim. App. 1999). When the context is “ambiguous” and there is no 
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“inescapable conclusion” about the content of the out-of-court statement, the trial 

court has the discretion to admit the disputed testimony. Id. at 262. 

Appellant argues that the teacher’s testimony qualifies as backdoor hearsay 

because it “caused the jury to believe that [the complainant] had drawn something 

on paper or written something on paper that showed that Appellant had indeed 

committed the crimes alleged in the indictment.” But the context did not require that 

conclusion. The note may have described physical abuse (which was not alleged in 

the indictment), instead of sexual abuse (which was). 

Even if the note had described sexual abuse, there was nothing from the 

context that identified any specific details of the sexual abuse, which had taken 

various forms in this case. For example, by the time the teacher had testified, the 

evidence established that appellant had touched the complainant’s penis, that 

appellant had put his own penis in the complainant’s mouth, and that appellant had 

ejaculated into the complainant’s mouth, among other illicit acts. There was no 

indication which, if any, of these acts were revealed in the complainant’s note. Nor 

was there any indication that the complainant presented his note in the form of a 

drawing or a written statement, or perhaps even a combination of both. Because no 

inescapable conclusion could be reached as to the contents of the note, the trial court 

could have reasonably determined that the prosecutor’s questions did not call for 

backdoor hearsay, and that the teacher could therefore testify about his reactions to 

the note. Id. (holding that testimony did not violate the rule against backdoor hearsay 

because the testimony did not reveal the substance of the out-of-court statements). 

In one final and related complaint, appellant argues that the teacher’s 

testimony about a “red flag” amounted to backdoor hearsay. But the trial court 

sustained appellant’s objection to this testimony, and appellant did not ask for any 
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additional relief. Accordingly, no error has been shown. See Weedon v. State, 501 

S.W.2d 336, 338 (Tex. Crim. App. 1973). 

The judgment of the trial court is affirmed.

 

 /s/ Tracy Christopher 

 Justice 

Panel consists of Justices Christopher, Hassan, and Poissant.

Do Not Publish — Tex. R. App. P. 47.2(b).