In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-16-00366-CR

___________________________

On Appeal from the 211th District Court

Denton County, Texas

Trial Court No. F15-1103-211

Before Walker, Meier, and Birdwell, JJ.

Opinion by Justice Meier

RAYMOND LUMSDEN, Appellant

V.

THE STATE OF TEXAS
2

OPINION

I. Introduction

A jury found Appellant Raymond Lumsden guilty of aggravated sexual assault 

of a child, indecency with a child, and criminal solicitation of a minor and assessed his 

punishment at confinement for life for each offense, and the trial court ordered the 

three life sentences to run consecutively. See Tex. Penal Code Ann. §§ 15.031, 21.11, 

22.021 (West Supp. 2018) (setting forth elements of the offenses of criminal 

solicitation of a minor, indecency with a child, and aggravated sexual assault of a child, 

respectively). In fourteen issues, Lumsden appeals his convictions and sentences. We 

affirm.

II. Background1

A. The Victim

Allison,2 who was almost nine years old at the time of the trial, testified that 

after her mother Kelly started dating Lumsden, they moved in with him. Allison had 

her own room at Lumsden’s house. 

 

1Because Lumsden challenges the sufficiency of the evidence to support his 

conviction for criminal solicitation of a minor, which requires the victim’s testimony 

to be corroborated, we set forth the trial testimony by witness.

2We use a pseudonym to refer to the complainant, her mother, and all minors. 

See Tex. R. App. P. 9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. 

App. [Panel Op.] 1982). 
3

On the night in question, Kelly went to bed early because she was not feeling 

well. Allison’s brother David had also gone to bed. Allison stayed up late watching 

television with Lumsden. At one point, she went upstairs to grab a blanket and a 

pillow because she was really sleepy. She laid down beside Lumsden, who was sitting 

on the couch watching television. While Allison was laying on her back on the couch, 

Lumsden put his pointer finger under her purple and pink monkey pajamas and under 

her panties and touched her “privates.” Allison said that Lumsden touched the 

outside of her private that she used to pee and that his pointer finger stayed still,

which made her “[a] little uncomfortable.” Lumsden touched the inside of the part 

that Allison used to poop. Allison testified that Lumsden wanted her to touch “the 

thing he went pee with,” but she said no. Allison became hungry and asked for red 

Jell-O, which Lumsden allowed her to have. Afterwards, Lumsden went to bed, and 

she slept on the couch because she was too tired to go upstairs to her room. Allison 

testified that the time on the clock reflected that it was midnight. 

The next morning, after Kelly came downstairs and woke up Allison, Allison 

told her that Lumsden had touched her privates. Kelly then took Allison to the police 

station, and from there, the police escorted Kelly and Allison to the hospital. Allison 

told a nurse what Lumsden had done to her and underwent a physical exam. 

The following day, Allison recounted the touching to a forensic interviewer at 

the Children’s Advocacy Center. Allison thereafter began seeing a counselor. 
4

B. The Victim’s Mother

Kelly, who was divorced from Allison’s father, testified that she moved in with 

Lumsden in November 2014. On the evening of March 10, 2015,3 Kelly had a kidney 

infection, took a muscle relaxer, and went to bed. 

When Kelly went downstairs the next morning, she found Allison asleep on the 

couch. Kelly testified that finding Allison on the couch was unusual because she had 

her own bedroom. 

Kelly sat down next to Allison on the couch, rubbed her back, and told her that 

it was time to wake up. Kelly said that Allison opened her eyes “really big” like she 

was “startled almost,” looked at Kelly, and said she was really tired. Kelly asked 

Allison why she was tired, and she said, “Ray and I had a lot of fun last night.” When 

Kelly asked what they did, Allison replied that it was a secret. Kelly told Allison that 

she was not to keep secrets from her. Allison said that she could tell Kelly one 

thing—that she and Lumsden had eaten Jell-O and cookies even though Allison knew 

that Kelly did not like her to have sugar at night. Kelly told her that it was sometimes 

okay to have sugar at night. 

Kelly asked what Allison and Lumsden had done. At that point, Allison’s 

demeanor completely changed. Kelly explained that Allison “tightened up. She

looked down. She looked scared. Something was wrong.” Kelly testified that she 

 

3Based on other testimony, it appears that the date was March 9, 2015, but we 

set forth the date Kelly gave during her testimony.
5

had never seen Allison act like that. Allison said that she could not tell Kelly the other 

secret because Lumsden had told her “never ever to tell” and that Kelly would be 

mad. Kelly then asked Allison, “Did he touch you?” Allison said, “Yes, in two 

places,” and she held up her fingers. Allison told Kelly that Lumsden had touched 

her “privates” and her bum, and she pointed down whenever she said privates. Kelly 

asked Allison whether Lumsden had touched her inside or outside her panties, and 

she said inside. Allison told Kelly that Lumsden had inserted his finger inside her 

privates and her bum, that he asked her if she liked it, that she said no, and that he 

said that was what mommy likes. Kelly told Allison, “Baby, you know that wasn’t 

right. You know that was wrong. Right?” Allison said, “[Y]eah.” Kelly asked 

Allison if she had touched Lumsden, and Allison replied, “He asked me if I wanted 

to, but I said no.” Kelly picked up Allison and told her that she was proud of her for 

telling her what had happened and that they were going to talk to some other adults 

they could trust. 

Once they were in the car, Kelly called 911, and the 911 operator guided her to 

the sheriff’s office. Kelly spoke briefly to two police officers at the Denton County 

Sheriff’s Office. Then, she followed a police officer to the hospital. Kelly testified 

that she was in the room when a sexual assault nurse examiner (SANE) examined 

Allison. 

While they were at the hospital, Kelly received text messages from Lumsden. 

She “was really angry” and sent him a text that asked how he could have done this. 
6

Lumsden “was really mad” and responded that Allison had blamed her grandpa4and 

her father5for “the same things,” that she could not be trusted, and that she needed 

help. Kelly testified that Allison had never told her that her grandpa or her father had 

touched her inappropriately and that she (Kelly) did not believe Lumsden’s texts. 

The following day, Allison’s father took her to the Children’s Advocacy Center, 

and Kelly met them there. Kelly moved out of Lumsden’s house. 

C. The Victim’s Half-Brother

Kelly’s son David testified that his mother had previously dated Lumsden, and 

David identified Lumsden in the courtroom. David said that on the night in question, 

he was at Lumsden’s house with Kelly, Lumsden, and Allison. David testified that he 

had school the next day but that Allison did not because she attended school in a 

 

4Kelly explained that about six weeks prior to the incident, Lumsden had told 

her in the kitchen one day that Allison had told him “something kind of weird” about 

a time when her grandpa was tickling her and her panties accidentally showed; she 

said, “[W]hoops, my panties are showing”; and her grandpa said that was okay. Kelly 

testified that Lumsden’s story “was really weird” to her because Allison never wore 

dresses without leggings or shorts underneath and so her panties would not have 

shown. Lumsden was upset and wanted her to be upset and to call CPS, but Kelly 

told him that she would talk to Allison about the incident even though she was “sure 

it’s nothing.” When Kelly asked Allison if her grandpa had ever made her feel 

uncomfortable, she had nothing to say other than that he is silly. 

5Kelly testified that one night—a couple of weeks before the incident—when 

she was giving Allison a bath, Lumsden had questioned her about who bathed Allison 

at her father’s house. Kelly told him that Allison washes herself but that her father

probably helped her with her hair. Kelly testified that Lumsden was bothered by this 

and said that it was inappropriate. Kelly told Lumsden that she would work with 

Allison on washing her own hair. After Kelly spoke with Allison, Kelly did not think 

that Allison’s father was doing anything inappropriate. 
7

different school district. David recalled that Lumsden had given Kelly some medicine 

because she was not feeling well and that she went to bed. David testified that he, 

Allison, and Lumsden had watched television for a while but that he had gone to bed 

about 9:30. David heard Lumsden tell Allison that she could stay up as long as she 

wanted because she did not have school the next day. When David went to bed, 

Allison and Lumsden were sitting next to each other on the couch. 

The next morning when David went downstairs to eat breakfast, he saw Allison 

sleeping on the couch with a blanket over her. When he left for school, Allison was 

still asleep. 

While David was at school, the receptionist notified him that his mom was 

going to be late because she was at the hospital. When Kelly eventually picked up 

David, they went to Lumsden’s house, and he packed a bag. After they left, Kelly 

received a call, and they returned to Lumsden’s house, which had police cars 

everywhere. David said that they went to a shelter that night. David did not recall 

Allison ever telling him about her grandpa or her father touching her inappropriately. 

D. Denton County Sheriff Deputies Gilberto Velo and Maurice Floyd (the 

deputies)6

Deputy Gilberto Velo with the Denton County Sheriff’s Office testified that he 

and Deputy Maurice Floyd were dispatched to the patrol office on the morning of 

 

6Because the two deputies worked together and provided similar testimony, we 

summarize their testimony together.
8

March 10, 2015, in response to a sexual assault call report. The deputies spoke with 

Kelly, who appeared to be shocked and in disbelief as she was talking. Deputy Velo 

said that Kelly teared up as she explained what Allison had told her had occurred the 

night before. 

Deputy Floyd recalled that Kelly

began to unfold to us verbally what her daughter stated to her about 

secrets, plural, and her comment as I recall, she says, well, honey, you 

know, momma has always told you we don’t keep secrets. And then her 

mother said, well, I need to know what those secrets are. And from 

what I call -- recall, she stated that her daughter stated to her that the

secrets involved Jell[-O], that she would be rewarded, so to speak, Jell[-

O] for, number one, keeping quiet about what the secret was about and 

then, number two, the mother began to elaborate on the fact that she 

had been touched in a -- her private area and that she wasn’t -- she had 

been told, now, don’t tell anybody. Don’t say anything to mommy about 

this because basically momma does -- does this too to me, that being the 

actor.

Neither Deputy Velo nor Deputy Floyd interviewed Allison that day. Allison 

was not in the room while the deputies spoke with Kelly. Afterwards, Deputy Floyd 

spoke with one of the investigators, who advised him that Allison needed to be seen 

by a SANE at Denton Regional Medical Center.

Kelly and Allison then followed the deputies to Denton Regional Medical 

Center. The deputies contacted Child Protective Services to make them aware of the 

report they had taken. Once the investigators arrived at the hospital, the deputies left. 
9

E. Investigator John Schofield

John Schofield, an investigator with the Denton County Sheriff’s Office, 

testified that he went to Denton Regional Medical Center on March 10, 2015, and 

obtained a box from a SANE and placed it in evidence at the sheriff’s office. Later 

that evening, Schofield assisted warrant deputies by watching for Lumsden’s vehicle 

because a warrant had been issued for his arrest. Schofield spotted the vehicle and 

went toward the area where Lumsden’s residence was located but was alerted that he 

had been arrested. 

F. The SANE

Nurse Julie Carriker, a registered nurse who worked part-time as a SANE for 

Denton County, testified that when she spoke with Allison at Denton Regional 

Medical Center, the first thing she asked her was if she knew why she was there.

Nurse Carriker testified that Allison told her the following:

So she told me that Ray touched her private part or her privates. She 

said that he did it all the time. She said that she didn’t know why, but 

that it had happened again the previous night. And she told me that she 

was in the living room, that he had turned the TV off[,] and [that] he

[had] touched her kidney parts was what she called it. And so I said, can 

you point to where that is? And she pointed to her vaginal area. 

Then she said the second time that he touched her, he touched 

her butt[,] and he put his hands in her pajamas. And she would say that 

he swirled his hand around, and she said[,] “Here,” and then she pointed 

again to that -- to the vaginal area.

She said that he kept pushing his finger into her butt and that he 

always swirled it around and it hurt her. She also said that he touched 

his pee part, and she pointed to the area -- the groin area. And she said 
10

he was swirling his pee part around playing with it. She mentioned that 

he kissed her on the lips, and she said that he does it all the time and that 

he wanted her to touch his private parts but she said no.

After obtaining Allison’s history, Nurse Carriker performed a head-to-toe exam

of Allison, looking for any signs of trauma. Nurse Carriker testified that she 

performed Allison’s physical exam at 2:00 p.m. on March 11, 2015,7 which was 

approximately fourteen hours after the incident. Nurse Carriker explained that during 

the exam, she noted “generalized redness” that covered Allison’s vaginal area and a 

tear or a cut “barely inside the anal opening at about 7:00.” Nurse Carriker testified 

that the redness on Allison’s vagina was consistent with Allison’s statement that 

Lumsden had put his finger there and had swirled it around. Nurse Carriker 

documented in her report that Allison’s anus dilated quickly, and she explained that 

she sees that “in abuse cases.” Nurse Carriker testified that the tear in Allison’s anus 

was consistent with Allison’s statement that Lumsden had inserted his finger in her 

bottom. Allison told Nurse Carriker that the tear in her anus bothered her. Nurse 

Carriker swabbed Allison’s mouth, vagina, anus, and fingernail area and combed 

through her hair to collect biological evidence. 

G. The Forensic Interviewer

Priscilla Alvarado, who serves as a family services coordinator at the Children’s 

Advocacy Center for Denton County, testified that during her forensic interview with 

 

7Based on other testimony, it appears that the date was March 10, 2015, but we 

set forth the date Nurse Carriker gave during her testimony.
11

Allison on March 11, 2015, she said that her mom’s boyfriend Lumsden had “done 

this to her.” Alvarado testified that Allison provided sensory details and peripheral 

details when she explained what had happened to her. The video of the forensic 

interview was played for the jury. 

During the forensic interview, Allison said that she was seven years old and 

that she was there because “my friend Ray [whom she identified as her mother’s 

boyfriend] keeps touching my privates, and I don’t know why.” Allison told Alvarado 

that Lumsden had touched her more than one time, that she could not remember the 

first time, but that it had occurred when she was seven years old. Allison later told 

Alvarado that Lumsden had touched her four times, that one time he only touched 

her pee part, and that the other times “were kind of like the same thing.” 

Allison told Alvarado about a recent touching. Allison said that after she took 

a bath, she went downstairs to be with Lumsden. She said that she was wearing her 

Monkey Junior pajamas and rainbow panties and that Lumsden was wearing a dark 

blue shirt and gray pants. After her half-brother David went to bed, she went upstairs 

to grab toys and a pillow so that she could sleep on the couch. Allison said that 

Lumsden was sitting at the very end of the couch and that she was laying on him on 

her back “to get really cozy.” Allison explained that it was midnight and that 

Lumsden touched her “privates,” which she explained was her term for the body 

parts that she used to go to the bathroom. Allison said that Lumsden touched her 

under her clothes with his fingers and that he was “wobbling” and kept “wiggling” his 
12

fingers. Allison told Alvarado that Lumsden had put his finger in her butt “really, 

really deep” and that it had made her feel “weird” and “disgusting” and 

“embarrassed.” Allison said that she told Lumsden to stop. Allison said that 

Lumsden asked her to touch his pee part, but she told him no. Allison told Alvarado 

that Lumsden “tells me he always touches [Mom’s] butt and pee spot.” Allison said 

that Lumsden also told her not to tell anyone and specifically not to tell her mother. 

Lumsden then gave her red Jell-O, which she said was her favorite. Allison told 

Alvarado that this kind of touching had not happened with anyone else before. 

H. Lumsden’s Son’s Friend

Elliott, who was in eighth grade, testified that he was friends with Lumsden’s 

son John. After Lumsden bonded out of jail on these offenses, Elliott received a call 

from a man named Troy who lived at Lumsden’s house and was allegedly John’s 

uncle. Troy told Elliott to tell John that “if they ever asked questions,” he should say 

that when Allison was in the kitchen doing cartwheels, her “grandpa was doing stuff 

that he shouldn’t have been doing.” 

I. Investigator Ashleigh Berg

Ashleigh Berg, an investigator with the Denton County Sheriff’s Office, 

testified that she went to Lumsden’s residence on March 10, 2015, to execute a search 

warrant. Berg found blankets and a pillow on the couch, which looked like it “was 

made up into a bed,” and were consistent with Allison’s statement. Berg also found

an empty serving cup of Jell-O on the top of the trash can in the pantry in the kitchen 
13

and the pull-off lid was on the countertop in the kitchen, which she testified was

consistent with Allison’s statement. Berg photographed the Jell-O container and the

couch. Lumsden was at the residence during the search and gave Berg permission to 

take photographs of text messages on his phone. 

J. Investigator Marco Deleon

Marco Deleon, who previously worked in criminal investigations with the 

Denton County Sheriff’s Office, testified that on March 10, 2015, he met with Kelly 

when she brought Allison to the sheriff’s office. Deleon described Kelly as “very 

distraught, very self-blaming.” After hearing Kelly describe what had happened to 

Allison, Deleon made the decision that they should move forward immediately with a 

sexual assault exam by a SANE at the hospital because he estimated that only twelve 

to fourteen hours had passed since the alleged sexual assault had occurred. 

Deleon testified that afterwards, he met with Nurse Carriker and reviewed her 

report, which indicated that Allison had a tear in her anus that was consistent with a 

fingernail; that her anus dilated very quickly, indicating that it had been recently 

penetrated; and that she had redness in her vaginal area. Based on Nurse Carriker’s 

findings during Allison’s physical exam, Deleon obtained an arrest warrant for 

Lumsden, which was executed at his residence when he arrived home from work. 

Upon arrest, Lumsden wanted Deleon to look at the text messages between 

him and Kelly. Deleon described Lumsden’s text messages to Kelly as setting the 

stage to show that someone else was responsible for the sexual assault of Allison.
14

During the search of Lumsden’s residence, Lumsden pointed out some legal 

paperwork that he felt was relevant to show that he was not responsible. Deleon 

collected the paperwork but did not find Lumsden’s defense to be valid. Deleon

testified that when he looked into Lumsden’s statements that Allison’s grandpa or her 

father had inappropriately touched her, Deleon found that Lumsden was the root of 

those statements. 

Deleon testified that the day following Lumsden’s arrest, he (Deleon) watched

Allison’s forensic interview from a room that was adjoined to the interview room. 

Deleon said that Allison provided “a lot of details” that they did not know when they 

executed the search warrant on Lumsden’s home. Deleon said that Allison described 

the clothing she had on during the sexual assault—monkey pajamas and rainbow 

panties—and the color of the pants and shirt that Lumsden had been wearing. 

Deleon said that Allison described laying on the sofa with Lumsden and getting cozy 

with him before the sexual assault occurred. Deleon testified that the statements 

Allison made during the forensic interview were corroborated by the evidence found 

at Lumsden’s residence and by the findings of the sexual assault examination. Deleon 

took buccal swabs of Lumsden’s mouth to obtain his DNA. 

Deleon spoke with Kelly again after Allison’s forensic interview. Kelly told 

Deleon about the background of Lumsden’s relationship toward children, which 

reflected preplanning and grooming. Kelly also gave Deleon a box of items. 
15

During the investigation, Kelly told Deleon that she was concerned about a 

blog called Topics that discussed Kelly and Allison and mentioned paying Kelly some 

money to make the case go away and to prevent Allison from having to testify in 

court. Deleon traced several of the usernames that posted about Kelly and Allison 

and built up Lumsden’s character back to a single source—Lumsden’s cell phone.

Also during the investigation, Deleon was made aware that people were 

receiving phone calls that were trying to interfere with the investigation. Troy told 

Deleon that Lumsden was using his (Troy’s) name and calling people. Troy was

ultimately ruled out as the person who was making the phone calls. 

K. Lumsden’s Son 

John, who is Lumsden’s son, testified that he was not at his dad’s house when 

the events at issue transpired. John said that Allison never told him anything about 

her grandpa or her father touching her inappropriately. John testified that Allison 

never touched him inappropriately. 

L. Forensic DNA Analyst 

Christina Capt, who is a technical leader and a forensic DNA analyst with the 

University of North Texas Center for Human Identification, testified that the vaginal 

swabs that had been taken from Allison were used to develop an unknown Y STR 

profile. The buccal swabs from Lumsden were used to develop a known Y STR

profile. Capt explained that the profile developed for Lumsden was compared to the 

profile from Allison’s vaginal swab, and “at all nine locations where we obtained data 
16

for the vaginal swab, there was an exact match with the alleles detected in Raymond 

Lumsden’s profile.” Capt testified that she was thus not able to exclude Lumsden 

from being a contributor to the unknown Y STR profile found in Allison’s vaginal 

swabs. Capt further testified that six out of 10,000 people would have the same nine 

markers that were located in this case and that no other male contributors were 

detected on any of the items that were tested. 

M. Lumsden

Lumsden took the stand during the defense’s case in chief. Lumsden testified 

that when he was sixteen years old, he was convicted of fifth-degree burglary in 

Minnesota and was sentenced to adult prison. While Lumsden was in prison, he saw 

Troy, whom he had seen before at family get-togethers and understood that he was a 

relative. Lumsden later learned from his mother that Troy was a cousin on his 

father’s side.8 Lumsden said that Troy protected him while he was in prison. Because 

Lumsden felt a debt of gratitude toward Troy, Lumsden housed and fed him once 

they were released from prison. 

Lumsden testified that due to the kids being home for spring break and Kelly 

being sick, he had asked Troy to come help out with his kids. Lumsden said that on 

the night in question, Kelly was in bed when he came home from work, Allison was 

 

8Lumsden’s ex-wife Amanda testified that Troy was not related to Lumsden in 

any way and that he was simply a friend. 
17

watching television, and David was playing video games. Lumsden testified that he 

gave Allison red Jell-O between 8:00 and 9:00 p.m. 

Lumsden went upstairs and put on a pair of gray sweatpants and a blue shirt. 

Lumsden said that when he came downstairs, he finished some work and then sat on 

the couch and watched television with Allison. Lumsden testified that David went to 

bed about 10:15 p.m. and that he went to bed around 10:30 p.m. after locking the 

front door and setting the alarm. Lumsden agreed that he was alone on the couch 

with Allison for a period of time. 

Lumsden said that when he went upstairs to go to bed, Allison was already 

asleep on the couch. He woke up Kelly and told her that Allison was sleeping on the 

couch downstairs, and Kelly said that Allison was supposed to be sleeping in her own 

room. Lumsden said that Kelly went downstairs and dealt with Allison around 10:45 

or 11:00 p.m. Lumsden testified that he did not go downstairs in the middle of the 

night and assault Allison. 

When Lumsden went downstairs the next morning, Allison was sitting on the 

couch eating cereal that David had prepared for her. Lumsden said that he and Kelly 

had a very explosive fight that morning and that Allison was crying when he left for 

work. When Kelly sent Lumsden text messages later that morning accusing him of 

sexually assaulting Allison, he knew that he had not sexually assaulted Allison and told 

Kelly that she needed to look at Allison’s grandpa and father as possible suspects. 
18

Lumsden also considered the possibility that Troy could have been a suspect 

but did not know if he would do something like that. Lumsden said that Troy had a 

set of keys to the house and had previously stayed in the room that Allison used as 

her bedroom. Lumsden testified that it was possible that Troy came in the middle of 

the night, tried to sleep on the couch, assaulted Allison, and then left. Lumsden 

testified that the only thing Allison had ever said about Troy was that he had tickled 

her; Lumsden had never heard any allegations about Troy. 

Lumsden admitted that he could not explain the DNA evidence. Lumsden 

testified that his son John did not sexually assault Allison and that none of his other 

patrilineal relatives were in his home on the night in question. 

Lumsden gave a statement to Deleon when he was arrested. When confronted 

with the statement he gave at that time, which said that Kelly was sick downstairs with 

Allison and David when he got home from work around 9:00 p.m., Lumsden said it 

was possible that he had previously said that. Lumsden did not recall telling Deleon 

that Kelly went to bed fifteen minutes before Lumsden went to bed. 

Lumsden recalled that he had given a statement to someone at Child Protective 

Services. The prosecutor recounted that Lumsden had told CPS that Kelly was in bed 

when he got home at 9:00; that she got out of bed, ate, and was groggy; that he and 

David went to bed; and that Allison was downstairs on the couch. Lumsden testified 

that was the exact same thing that he had told Deleon, except the fact that she got up 

and ate. Lumsden testified that he did not really know what he had told Deleon 
19

because he had guns pointed at his face, but he recalled telling Deleon specifically that 

Kelly was in bed when he got home and that she had been in bed all day because she 

was sick and taking pills that had been prescribed to her. 

When confronted with the letter that he had written to his ex-wife Lindsey, 

whom he had told that he and David had gone upstairs together at 10:30 p.m. on the 

night in question, Lumsden explained that there was maybe a fifteen-minute gap 

between the time that he and David went to bed that night. 

Lumsden agreed that in the statements he had made to Deleon, the CPS 

worker, and Lindsey, he had said that at some point, there was a room full of 

people—including John, David, Elliott, and Kelly—and that Allison had made 

allegations against her grandpa and her father. When confronted with David, Elliott, 

and John’s trial testimony that Allison had never made that allegation, Lumsden said 

that maybe they did not hear her say it or did not remember that she had said it. 

On cross-examination, Lumsden did not contest the fact that Allison had been

sexually assaulted on or about March 10, 2015; that the only people in his home on 

the night in question were Kelly, Allison, David, and Lumsden; and that there was no 

testimony that Troy was anywhere near Lumsden’s home on the night in question. 
20

N. Rebuttal Witnesses

During rebuttal, the State called three of Lumsden’s ex-wives, his daughter 

Anna, Kelly, an employee of the Denton probation department, Deleon, and a Flower 

Mound police officer—all of whom expressed their opinions that Lumsden was 

untruthful. 

III. Sufficiency of the Evidence

In his first issue, Lumsden argues that the evidence is insufficient to support 

his conviction for criminal solicitation of a minor. 

A. Standard of Review

In our due-process review of the sufficiency of the evidence to support a 

conviction, we view all of the evidence in the light most favorable to the verdict to 

determine whether any rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 

2781, 2789 (1979); Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). This 

standard gives full play to the responsibility of the trier of fact 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, 99 S. Ct. at 2789; Jenkins, 493 S.W.3d 

at 599.

The trier of fact is the sole judge of the weight and credibility of the evidence. 

See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Blea v. State, 483 S.W.3d 29, 33 

(Tex. Crim. App. 2016). Thus, when performing an evidentiary sufficiency review, we 
21

may not re-evaluate the weight and credibility of the evidence and substitute our 

judgment for that of the factfinder. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. 

Crim. App. 2012). Instead, we determine whether the necessary inferences are 

reasonable based upon the cumulative force of the evidence when viewed in the light 

most favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), 

cert. denied, 136 S. Ct. 198 (2015). We must presume that the factfinder resolved any 

conflicting inferences in favor of the verdict and defer to that resolution. Id. at 448–

49; see Blea, 483 S.W.3d at 33.

B. Applicable Law

As applicable in this case, a person commits the offense of criminal solicitation 

of a minor if, with intent that indecency with a child be committed, he requests, 

commands, or attempts to induce a minor to engage in specific conduct that, under 

the circumstances surrounding the actor’s conduct as the actor believed them to be, 

would constitute indecency with a child. Tex. Penal Code Ann. §§ 15.031(a), 21.11(a). 

However, a person may not be convicted of criminal solicitation of a minor on the 

uncorroborated testimony of the minor allegedly solicited “unless the solicitation is 

made under circumstances strongly corroborative of both the solicitation itself and 

the actor’s intent that the minor act on the solicitation.” Id. § 15.031(c).

The corroboration required under the criminal solicitation statute is analogous 

to the corroboration requirement found in the accomplice-witness statute. Compare 

id., with Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005); see Richardson v. State, 
22

700 S.W.2d 591, 594 (Tex. Crim. App. 1985). Due to the similarities between these 

two statutes, the test for evaluating the sufficiency of the corroboration evidence is 

the same under each. Richardson, 700 S.W.2d at 594. In assessing the sufficiency of 

the evidence corroborating the victim’s testimony, the test requires that we eliminate 

the minor victim’s testimony from consideration and then determine whether there is 

other incriminating evidence tending to connect the accused with the crime. Id. The 

tends-to-connect standard presents a low hurdle for the State because the evidence 

need not directly link the accused with the crime or be sufficient in itself to establish 

guilt. See Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim. App. 2008), cert. denied, 

556 U.S. 1211 (2009); Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996).

C. Analysis

Here, eliminating Allison’s testimony from consideration, we conclude that the 

State presented other evidence that tends to connect Lumsden with the offense of 

criminal solicitation of a minor. Kelly noted unusual behavior and a change in 

Allison’s demeanor when she awoke her the morning after the sexual assault. Kelly 

testified that when she asked Allison if she had touched Lumsden, Allison replied, 

“He asked me if I wanted to, but I said no.” Similarly, Nurse Carriker testified that 

Allison told her that Lumsden wanted her to touch his private parts, but she said no.

And during the forensic interview, Allison said that Lumsden had asked her to touch 

his pee part, but she told him no. 
23

Additionally, Lumsden’s description of what he was wearing on the night in 

question matched the description that Allison had given during her forensic interview. 

Lumsden admitted that he had given Allison red Jell-O, and the search of Lumsden’s 

residence revealed an empty single-serving carton of Jell-O in the trash, as well as a 

pillow and a blanket on the couch where Allison had slept. Lumsden’s testimony, as 

well as David’s testimony, demonstrated that there was a period of time when 

Lumsden was alone with Allison on the couch after David went to bed. 

As the sole judge of the weight and credibility of the evidence, the jury had 

before it testimony from multiple individuals that Lumsden was not truthful; similarly, 

the jury had before it evidence that Allison was credible because her allegations of 

penetration by Lumsden had been corroborated with physical findings during the 

sexual assault examination and DNA evidence. Moreover, the testimony from Kelly, 

Nurse Carriker, David, Lumsden, and the investigators who searched Lumsden’s 

residence, as well as the video of the forensic interview, tends to connect Lumsden 

with criminal solicitation of Allison, who was a minor. Viewing the evidence in the 

light most favorable to the verdict, we hold that a rational trier of fact could have 

found beyond a reasonable doubt that Lumsden solicited Allison, a minor. See 

Thompson v. State, No. 07-12-00454-CR, 2014 WL 4807581, at *4 (Tex. App.—

Amarillo Sept. 19, 2014, pet. ref’d) (mem. op., not designated for publication) (holding 

that testimony of appellant, victim’s sister, nurse examiner, and recorded conversation 

constituted sufficient evidence tending to connect appellant with criminal solicitation 
24

of R.S., a minor); Lankford v. State, 255 S.W.3d 275, 277 (Tex. App.—Waco 2008, pet. 

ref’d) (holding that testimony from multiple witnesses, including appellant, 

corroborated the solicitation).9 We overrule Lumsden’s first issue.

IV. Motion to Suppress

In his second issue, Lumsden argues that the trial court reversibly erred by 

denying his motion to suppress evidence alleged as DNA. 

A. Standard of Review

When reviewing the trial court’s ruling on a motion to suppress, we must view 

the evidence in the light most favorable to the trial court’s ruling. Wiede v. State, 

214 S.W.3d 17, 24 (Tex. Crim. App. 2007); State v. Kelly, 204 S.W.3d 808, 818 (Tex. 

Crim. App. 2006). When the trial court makes explicit fact findings, we determine 

whether the evidence, when viewed in the light most favorable to the trial court’s 

ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19. We then review the 

 

9Lumsden argues that public policy considerations weigh strongly against 

holding that a minor complainant’s own hearsay, as relayed through the testimony of 

other witnesses, can “corroborate” her in-court testimony for purposes of section 

15.031. Because the law interpreting section 15.031’s corroboration requirement is 

clearly established and permits the use of a victim’s statements to others, we decline to 

overturn it on the public policy grounds advanced by Lumsden. See, e.g., Thompson, 

2014 WL 4807581, at *4 (utilizing statements victim made to her sister and to nurse 

examiner to corroborate solicitation offense); Cortez v. State, No. 13-05-00447-CR, 

2006 WL 1875465, at *2 (Tex. App.—Corpus Christi July 6, 2006, pet. ref’d) (mem. 

op., not designated for publication) (utilizing statements victim made to his parents to 

corroborate offense of solicitation). 
25

trial court’s legal ruling de novo unless its explicit fact findings that are supported by 

the record are also dispositive of the legal ruling. Id. at 818.

B. Applicable Law

Rule of evidence 403 provides that relevant evidence may be excluded if its 

probative value is substantially outweighed by the danger of unfair prejudice, 

confusion of the issues, misleading the jury, or by considerations of undue delay or 

needless presentation of cumulative evidence. Tex. R. Evid. 403. In a proper rule 403 

analysis, the trial court must balance the inherent probative force of the proffered 

item of evidence, along with the proponent’s need for that evidence, against (1) any 

tendency of the evidence to suggest decision on an improper basis, (2) any tendency 

of the evidence to confuse or distract the jury from the main issues, (3) any tendency 

of the evidence to be given undue weight by a jury that has not been equipped to 

evaluate the probative force of the evidence, and (4) the likelihood that presentation 

of the evidence will consume an inordinate amount of time or merely repeat evidence 

already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). 

The Texas Court of Criminal Appeals has cautioned that in reviewing the trial court’s 

rule 403 balancing determination, we are to “reverse the trial court’s judgment ‘rarely 

and only after a clear abuse of discretion.’” Mozon v. State, 991 S.W.2d 841, 847 (Tex. 

Crim. App. 1999).
26

C. What the Record Shows

The trial court held a pretrial hearing on Lumsden’s motion to suppress 

evidence alleged as DNA. The trial court asked for clarification on the basis for 

Lumsden’s motion, and he agreed that he was arguing under rule 403 that the DNA 

evidence would be unfairly prejudicial to him because “it identifies Mr. Lumsden and 

any of his male heirs.” 

Capt, the State’s DNA expert who testified at trial, also testified at the pretrial 

hearing. Capt testified that the swabs taken from Allison had been compared to the 

DNA samples from Lumsden for Y chromosome STR markers and that nine of 

seventeen alleles were found. Capt recognized that those nine alleles would also 

match Lumsden’s male heirs. Capt testified that using the DNA printout scale, 

evidence of only one male was detected in Allison’s sample. On cross-examination, 

Capt testified that 0.06% of the population would share the Y STR markers in their 

partrilineal lineage. 

The trial court stated its conclusion on the record:

In regards to the objection under 403, while I understand that certainly it 

could be a valid argument that there’s someone else in Mr. Lumsden’s 

line or his heirs on his male side, I do believe that that would be proper

cross-examination or proper argument. But in regards to whether or not 

I would exclude the evidence because the probative value substantially is 

outweighed by the danger from any type of unfair prejudice or confusing 

the issues or anything of that nature, I can’t find that it would violate 403 

and would simply overrule the grounds based upon that.

The trial court also signed an order denying Lumsden’s motion to suppress. 
27

D. Analysis

Considering the first factor in the 403 analysis, the probative value of the DNA 

evidence is high. Lumsden’s defensive theory at trial was that because Allison was 

asleep and because it was dark, she did not see her attacker, whom he claimed was

Troy. Because Allison described being alone with Lumsden, her credibility was 

central to the State’s case. The DNA evidence—showing that the DNA found in the 

swab from Lumsden matched nine of seventeen alleles in Allison’s vaginal swab and 

that only one male was detected as the contributor for the Y STR in Allison’s vaginal 

swab—corroborated Allison’s testimony and was therefore probative of Lumsden’s 

guilt. Lumsden’s argument—that the probative value of the DNA evidence is 

minimal because it could not be positively matched only to Lumsden but could match 

with any male in his patrilineal lineage—is not persuasive; the evidence showed that 

no other male relative of Lumsden’s was in the house on the night in question and 

that Lumsden affirmatively testified that his son John did not sexually assault Allison. 

The probative value of the DNA evidence was therefore anything but minimal.

With regard to the second factor, although the DNA evidence in this case is 

certainly prejudicial, it is not unfairly prejudicial because it provides circumstantial 

proof of at least one of the charged offenses. See Dossett v. State, 216 S.W.3d 7, 22 

(Tex. App.—San Antonio 2006, pet. ref’d) (“The prejudicial nature of the DNA 

evidence was no higher than other inculpatory scientific evidence[] and was not 
28

unfairly prejudicial.”). Under these circumstances, the DNA evidence presented was 

not such that it would tempt the jury to come to irrational conclusions.

The third factor—the time needed to develop the evidence—does not weigh in 

favor of Lumsden. The trial transcript demonstrates that Capt’s testimony, including 

cross-examination by Lumsden, spanned only thirty-one pages of the over 600 pages 

of the guilt-innocence phase of the trial. In its opening statement, the State briefly 

mentioned that the SANE had obtained vaginal and anal swabs from Allison and later 

told the jury that Capt would testify that “she cannot exclude Ray Lumsden or any

patrilineal relatives, meaning Ray Lumsden or his dad or his son.” Lumsden argues 

on appeal that the State did not qualify its argument in rebuttal to say that the DNA 

belonged to Lumsden “or . . . a patrilineal relative” but instead stated that the DNA 

belonged to Lumsden. Lumsden did not object to that statement, nor would an 

objection have been sustained because it was a proper summation of what the 

evidence at trial had shown—that Lumsden’s son John did not commit the sexual 

assault of Allison and that no patrilineal relative of Lumsden’s was in the home on the 

night in question. Moreover, because the DNA evidence linked Lumsden to Allison 

in a manner consistent with her testimony, the jury would not have been distracted 

from the indicted offense. 

With regard to the final factor—the State’s need for the evidence—the court of 

criminal appeals has held that a proponent’s need for evidence is great when there is a 

disputed issue and the proponent has no other evidence to prove the fact at issue. See 
29

Manning v. State, 114 S.W.3d 922, 928 (Tex. Crim. App. 2003). That is the situation 

here. Troy did not testify at trial, so there was no way to disprove Lumsden’s 

defensive theory that Troy came during the middle of the night, sexually assaulted 

Allison, and left before anyone awakened in the morning. But the discovery of DNA 

from Lumsden in the vaginal swabs taken from Allison disputes his theory. Thus, the 

State’s need for the DNA evidence is great.

Because the four factors weigh in favor of admission of the DNA evidence and 

because the probative value of the DNA evidence was not substantially outweighed 

by the danger of unfair prejudice, we hold that the trial court did not abuse its 

discretion by admitting the DNA evidence. See Dossett, 216 S.W.3d at 22 (holding that 

trial court did not abuse its discretion by finding that the probative value of DNA 

evidence was not substantially outweighed by the danger of unfair prejudice); Jean v. 

State, No. AP-76,601, 2013 WL 3282956, at *8 (Tex. Crim. App. June 26, 2013) (not 

designated for publication) (holding that although DNA evidence did take some time 

to develop due to its complexity, “that factor is more than outweighed by the 

others”), cert. denied, 571 U.S. 1166 (2014); Rivera v. State, No. 03-04-00235-CR, 2005 

WL 1240705, at *4 (Tex. App.—Austin May 26, 2005, no pet.) (mem. op., not 

designated for publication) (holding that trial court did not abuse its discretion by 

admitting DNA evidence because all four factors weighed in favor of admission). 

And because unfair prejudice under rule 403 was the sole basis of Lumsden’s motion 

to suppress the DNA evidence, we further hold that the trial court did not err by 
30

denying Lumsden’s motion to suppress the evidence alleged as DNA. We overrule 

Lumsden’s second issue.

V. Expert Expenses

In his third issue, Lumsden argues that the trial court reversibly erred by 

refusing to give prior approval for expenses related to expert testimony that Lumsden 

incurred in the presentation of his defense. 

A. Applicable Law

In Ake v. Oklahoma, the United States Supreme Court held that due process 

may require that an indigent defendant be granted access to expert assistance if the 

expert can provide assistance which is “likely to be a significant factor at trial.” 

Ex parte Jimenez, 364 S.W.3d 866, 876 (Tex. Crim. App. 2012) (citing Ake, 470 U.S. 68, 

74, 105 S. Ct. 1087, 1091–92 (1985)), cert. denied, 568 U.S. 1085 (2013). Before an 

indigent defendant is entitled to appointment and payment by the State for expert 

assistance, he must make a pretrial “preliminary showing” that is based upon more 

“than undeveloped assertions that the requested assistance would be beneficial.” See 

id. at 881 (citations omitted). Thus, in Texas, an indigent defendant will not be 

entitled to funding for experts absent adequate factual support in the written motion 

that he presents to the trial judge. Id. 

A trial judge does not err by denying an informal, off-the-record request for 

additional funding for experts when he is not presented with a written motion that 

contains affidavits or other evidence that would support the defendant’s request. Id.
31

at 882. Moreover, we cannot review the merits of an Ake claim if the defendant failed 

to file a proper pretrial motion that the trial judge denied. Id.

B. What the Record Shows

In July 2016, Lumsden filed a motion for approval of funds for experts and 

requested $6,000. The trial court approved $3,000 for the services of experts without 

prejudice to additional requests if necessary. Although Lumsden filed motions after 

this requesting funds for investigators, he did not file any other written motions 

requesting funds for expert witnesses. 

At the pretrial hearing on September 2, 2016, Lumsden made an oral request 

for the trial court to grant an additional $1,500 for a DNA expert to travel from 

California to be present at the trial. When the trial court inquired whether there were 

any experts that Lumsden could hire from Texas to avoid an additional out-of-state 

fee, Lumsden’s counsel responded that there were “plenty of experts I could have 

hired” but that Lumsden had “specifically demanded that we hire this specific expert 

from California.” The trial court stated that it was not going to make a dispositive 

ruling on Lumsden’s oral motion but would take the matter under advisement. The 

record does not show that the trial court ever ruled on Lumsden’s oral request for 

expert funds.
32

The clerk’s record contains a handwritten letter addressed to the judge and 

dated September 14, 2016,10 but filed September 23, 2016.11 In the letter, Lumsden 

states that his attorney “refuses to enter the DNA report of our court[-]approved 

expert, and he failed to have her here to testify. . . . Being indigent, I needed her here, 

but my lawyer said that you repeatedly denied providing funds to her travel 

expenses!?” Lumsden also raised this issue in his motion for new trial. 

C. Analysis 

Here, the record demonstrates that Lumsden did not file a proper pretrial

motion with the appropriate affidavits or other evidence supporting his request for 

funding to pay for a DNA expert. Lumsden has thus forfeited consideration of his 

Ake claim on appeal by failing to file a proper written Ake motion in the trial court. 

See id. (holding that applicant forfeited consideration of her Ake claim by failing to file 

a proper written Ake motion and ensuring that the trial judge formally ruled on it).12 

Accordingly, we overrule Lumsden’s third issue. 

 

10This date falls in the middle of the guilt-innocence phase, which began on 

September 13, 2016, and completed on September 15, 2016. 

11The punishment phase concluded on September 19, 2016. 

12Because Lumsden did not file a pretrial written motion with the requisite 

affidavits, we need not address whether his statements in his letter that was filed after 

the trial concluded and in his motion for new trial—that the trial court had denied his 

request for expert funding—constitute a ruling on Lumsden’s oral motion. See Tex. 

R. App. P. 47.1 (requiring appellate court to address only issues necessary to 

disposition of appeal).
33

VI. Evidentiary Challenges

In his fourth through tenth issues and in his twelfth issue, Lumsden challenges 

the trial court’s rulings on objections to various testimony and to the admission of 

State’s Exhibit Nos. 4, 13, and 30. Because these issues challenge evidentiary rulings, 

we set forth the applicable standard of review only once and refer to it, as necessary, 

in our analysis of each of these issues. 

A. Standard of Review

We review a trial court’s evidentiary rulings under an abuse-of-discretion 

standard. See Jenkins, 493 S.W.3d at 607. A trial judge’s decision is an abuse of 

discretion only when it falls outside the zone of reasonable disagreement. Winegarner 

v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). An evidentiary ruling will be 

upheld if it is correct on any theory of law applicable to the case. Gonzalez v. State, 

195 S.W.3d 114, 126 (Tex. Crim. App.), cert. denied, 549 U.S. 1024 (2006).

If we find error, we must conduct a harm analysis to determine whether the 

error calls for reversal of the judgment. Tex. R. App. P. 44.2. If the error is 

constitutional, we apply rule 44.2(a) and reverse unless we determine beyond a 

reasonable doubt that the error did not contribute to appellant’s conviction or 

punishment. Tex. R. App. P. 44.2(a). Otherwise, we apply rule 44.2(b) and disregard 

the error if it did not affect appellant’s substantial rights. Tex. R. App. P. 44.2(b); 

see Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert. 

denied, 526 U.S. 1070 (1999).
34

A substantial right is affected when the error had a substantial and injurious 

effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 

(Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 

1239, 1253 (1946)). Conversely, an error does not affect a substantial right if we have 

“fair assurance that the error did not influence the jury, or had but a slight effect.” 

Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johnson v. State, 

967 S.W.2d 410, 417 (Tex. Crim. App. 1998). In making this determination, we 

review the record as a whole, including any testimony or physical evidence admitted 

for the jury’s consideration, the nature of the evidence supporting the verdict, and the 

character of the alleged error and how it might be considered in connection with 

other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). 

B. Admission of Outcry Statements

In his fourth issue, Lumsden argues that the trial court reversibly erred by 

admitting Allison’s outcry statements through the testimony of her mother. Lumsden 

contends that the outcry statements constitute hearsay and do not fall within the 

purview of article 38.072. 

1. Applicable Law

Hearsay is generally inadmissible. See Tex. R. Evid. 802. But Texas Code of 

Criminal Procedure article 38.072 provides, in relevant part, that a statement is not 

inadmissible on the basis that it is hearsay if (1) the statement describes an offense 

under chapter twenty-one of the penal code that a defendant committed against a 
35

child younger than fourteen years of age; (2) the statement was made by the child to 

the first person who was eighteen years old or older, other than the defendant, that 

the child spoke to about the offense; and (3) the “trial court finds, in a hearing 

conducted outside the presence of the jury, that the statement is reliable based on the 

time, content, and circumstances of the statement.” Tex. Code Crim. Proc. Ann. art. 

38.072, §§ 1(1), 2 (West Supp. 2018). Indicia of reliability that a trial court may 

consider include:

(1) whether the child victim testifies at trial and admits making the outof-court statement[;] (2) whether the child understands the need to tell 

the truth and has the ability to observe, recollect, and narrate[;]

(3) whether other evidence corroborates the statement[;] (4) whether the 

child made the statement spontaneously in his own terminology or 

whether evidence exists of prior prompting or manipulation by adults[;] 

(5) whether the child’s statement is clear and unambiguous and rises to 

the needed level of certainty[;] (6) whether the statement is consistent 

with other evidence[;] (7) whether the statement describes an event that 

a child of the victim’s age could not be expected to fabricate[;]

(8) whether the child behaves abnormally after the contact[;] (9) whether 

the child has a motive to fabricate the statement[;] (10) whether the child 

expects punishment because of reporting the conduct[;] and 

(11) whether the accused had the opportunity to commit the offense.

Gonzales v. State, 477 S.W.3d 475, 479 (Tex. App.—Fort Worth 2015, pet. ref’d). With 

regard to the fourth indicia of reliability, spontaneity is a consideration relevant to the 

reliability of the outcry, but it is not a requirement for admissibility in and of itself. See

Thomason v. State, No. 07-97-00146-CR, 1998 WL 761883, at *7 (Tex. App.—Amarillo 

Nov. 2, 1998, pet. ref’d) (not designated for publication).
36

2. Relevant Portion of the Record13

The record demonstrates that the trial court held a hearing outside the jury’s 

presence on the admissibility of Allison’s statement to her mother. Both Allison and 

Kelly testified during the outcry hearing.

Allison testified that her mother, who is over the age of eighteen, was the first 

person she told. Allison explained that when her mother came in to wake her up the 

morning after the incident, she told her mother that she and Lumsden had spent 

some time together the night before and that something was wrong. Allison said that 

her mother then asked if Lumsden had touched her privates. 

Kelly testified at the hearing that on the night of the incident, she had a kidney 

infection, took a muscle relaxer, and went to bed early. When Kelly went downstairs 

the next morning, she saw that Allison was asleep on the couch, which was unusual 

because she never slept on the couch. Kelly woke up Allison and asked her if she felt 

okay. Allison said that she was really tired because she and Lumsden had stayed up 

really late the previous night and had a lot of fun. Kelly asked Allison what she and 

Lumsden had done the night before, and Allison said that it was a secret. Kelly told 

Allison that she should not keep secrets from her, and Allison confessed that she and 

 

13Although some of the testimony set forth below is repetitive of the trial 

testimony set forth in the factual background at the outset of the opinion, we include 

it here to show what evidence was before the trial court at the outcry hearing.
37

Lumsden had eaten Jell-O and cookies even though she knew that Kelly did not like 

Allison to have sugar at night. 

Kelly asked Allison what else they had done, and Allison said that was a big 

secret that she could not tell Kelly. Kelly said that Allison’s demeanor completely 

changed and that “[s]he looked scared. She looked tightened up. She wasn’t acting 

normal.” Kelly asked Allison what the secret was and promised her that she would 

not be mad. Allison said that Lumsden had told her that she could never tell Kelly 

because she would be really mad. Kelly testified that Allison had a look on her face 

that she had never seen before. Because Kelly had “a really bad gut feeling that 

something was really wrong,” she asked Allison if Lumsden had touched her. In 

response, Allison held up two fingers and said, “Two places.” Allison pointed to her 

private areas and said, “My privates and my bum.” Kelly asked whether the touching 

was on the inside or the outside of Allison’s panties, and Allison said the inside. 

Allison said that Lumsden had put his fingers inside of her in two places and asked 

her if she liked it, and she said no.14

3. Analysis

Lumsden challenges only the fourth indicia of reliability set forth above, 

arguing that Allison’s statements to her mother were not reliable because Allison “did 

 

14When Kelly testified before the jury, she further testified that she had asked 

Allison if she had touched Lumsden. Kelly did not convey this during the outcry 

hearing, but the State had disclosed in its outcry notice that she would testify about 

Lumsden’s requesting Allison to touch his penis. 
38

not make the ‘outcry’ statement spontaneously in her own terminology but was 

responding to her mother’s leading question.” Although the testimony from the 

hearing outside the presence of the jury indicates that the outcry statement was not 

made spontaneously, Kelly’s question to her daughter regarding whether Lumsden 

had touched her did not show that she prompted Allison as to the substance of the 

outcry. Allison’s response provided the details about where and how Lumsden had 

touched her. There was no evidence in the record that Kelly had coached or had 

manipulated Allison into fabricating a statement about Lumsden. The undisputed 

evidence demonstrated that Lumsden had the opportunity to commit the offense 

related in the outcry statement while Kelly was in bed with a kidney infection. The 

circumstances surrounding the outcry—that Allison told Kelly during their initial 

conversation the following morning—indicate that the outcry was reliable. 

Because spontaneity is not a requirement for admissibility in and of itself and 

because Lumsden does not challenge the other ten indicia of reliability, we conclude 

that Allison’s outcry statement to her mother was sufficiently reliable to be admissible. 

See Barker v. State, No. 07-17-00024-CR, 2018 WL 3637262, at *2–3 (Tex. App.—

Amarillo July 31, 2018, pet. filed) (mem. op., not designated for publication) 

(concluding that outcry statement was reliable despite fact that statement was not 

spontaneous); Davidson v. State, 80 S.W.3d 132, 139 (Tex. App.—Texarkana 2002, pet. 

ref’d) (holding outcry statement was reliable despite fact that victim was prompted 

and encouraged to tell what secret she was keeping); Thomason, 1998 WL 761883, at 
39

*7. Accordingly, we hold that the trial court did not abuse its discretion by admitting 

Allison’s outcry statement through Kelly, and we overrule Lumsden’s fourth issue.

C. Admission of Allison’s Statements Made to Nurse Carriker

In his fifth issue, Lumsden argues that the trial court reversibly erred by 

admitting hearsay statements that Allison made to Nurse Carriker. Lumsden 

contends that Allison’s statements to Nurse Carriker were not admissible as outcry 

statements under article 38.072 and were not admissible under the medical-diagnosisor-treatment exception to the hearsay rule. 

1. Applicable Law

Under rule 803(4), a hearsay statement is admissible if the statement is made 

for—and is reasonably pertinent to—medical diagnosis or treatment and describes 

medical history; past or present symptoms or sensations; their inception; or their 

general cause. Tex. R. Evid. 803(4). To establish this exception, normally the 

proponent of the evidence must show that the out-of-court declarant was aware that 

the statements were made for purposes of medical diagnosis or treatment and that 

proper diagnosis or treatment depended upon the veracity of the statements. Taylor v. 

State, 268 S.W.3d 571, 588–89 (Tex. Crim. App. 2008). The proponent must also 

show that the statements are pertinent to diagnosis or treatment, i.e., that it was 

reasonable for the care provider to rely on the statements in diagnosing or treating the 

declarant. Id. at 591. 
40

The Texas Court of Criminal Appeals has observed that “it seems only natural 

to presume that adults, and even children of a sufficient age or apparent maturity, will 

have an implicit awareness that the doctor’s questions are designed to elicit accurate 

information and that veracity will serve their best interest.” Id. at 589. Thus, the 

court of criminal appeals recognized “the almost universal tendency of courts under 

these circumstances to assay the record, not for evidence of such an awareness, but 

for any evidence that would negate such an awareness, even while recognizing that the 

burden is on the proponent of the hearsay to show that the [r]ule 803(4) exception 

applies.” Id. The court of criminal appeals has therefore not required the proponent 

of statements to a SANE to affirmatively demonstrate that the declarant was aware of 

the purpose of the statements and the need for veracity. See id.; Swofford v. State, 

Nos. 12-14-00081-CR, 12-14-00082-CR, 2015 WL 7019762, at *3 (Tex. App.—Tyler 

Nov. 12, 2015, no pet.) (mem. op., not designated for publication);15 see also Franklin v. 

State, 459 S.W.3d 670, 677 (Tex. App.—Texarkana 2015, pet. ref’d) (“[U]nlike 

statements made to non-medical professionals, which require affirmative evidence in 

the record on the issue of veracity, courts can infer from the record that the victim 

knew it was important to tell a [SANE] the truth in order to obtain medical treatment 

or diagnosis.”); Beheler v. State, 3 S.W.3d 182, 188 (Tex. App.—Fort Worth 1999, pet.

 

15This court previously relied on Swofford in Estes v. State, 487 S.W.3d 737, 756 

(Tex. App.—Fort Worth 2016), rev’d on other grounds, 546 S.W.3d 691 (Tex. Crim. App. 

2018).
41

ref’d) (“[T]here is no requirement that a witness expressly state that the hearsay 

declarant recognized the need to be truthful in her statements for the medical[-]

treatment exception to apply.”).

2. Relevant Portion of the Record16

During the outcry hearing that was held outside the presence of the jury, 

Allison testified on cross-examination that she remembered going to a hospital or 

doctor’s office but that she did not ask to go to the doctor’s office. Defense counsel’s 

cross-examination of Allison continued as follows:

Q. You weren’t -- you didn’t have a broken arm or a broken leg. You 

have seen children that have broken arms or broken legs[,] and they go 

to a doctor and get a cast or something on them?

A. Yes.

Q. And so you know they’ve been hurt[,] and they go to a doctor to get 

well. You know that. Correct?

A. Yes.

Q. And sometimes when you’re sick and you’re throwing up, sometimes 

your parents take you to a doctor to get you medicine that you have to 

take to get well. Right?

A. Yes.

Q. And you would know if you were sick or hurt, wouldn’t you?

 

16Like we did in issue four above, we set forth testimony from the outcry 

hearing even if it is repetitive of the trial testimony set forth in the factual background 

at the outset of the opinion to show what evidence was before the trial court at the 

outcry hearing.
42

A. Yes.

Q. So when your mom took you to this big medical building, were you 

asking to see a doctor or a nurse because you were sick or hurt?

A. No, I wasn’t asking.

Q. Okay. You were asked several questions by a lady there. Do you 

remember that?

A. Yes.

Q. And you didn’t know why they were asking you those questions, did 

you?

A. No.

Q. Because you weren’t telling them you were hurt and needed medical 

attention or treatment or because you were sick or injured. Right?

[The State’s objection was sustained.]

Q. (BY [DEFENSE COUNSEL]) I mean, you didn’t tell your mom you

were hurt and you needed to go see the doctor. Right?

A. I can’t remember.

When the State questioned Allison on rebuttal about going to the hospital, she said 

she remembered talking to a nurse named Julie and telling her what Lumsden had 

done to her. 

Nurse Carriker also testified at the hearing. Nurse Carriker testified that she 

had performed a sexual assault examination on seven-year-old Allison at Denton 

Regional Medical Center. When Nurse Carriker asked Allison why she was at the 

hospital, Allison said that she was there because Lumsden had touched her privates. 
43

Allison said that Lumsden “always [did] it,” that she did not know why, and that it had 

happened the previous night. Allison told Nurse Carriker that Lumsden had touched 

her “kidney parts,” and she pointed to her vaginal area. Allison said that Lumsden 

had also touched her butt and had put his hands in her pajamas and had “swirled his 

hand around”; during this explanation, Allison kept pointing to her vaginal area. 

Allison continued by telling Nurse Carriker that Lumsden had

kept pushing his finger into her butt and swirling his hand around, and 

she said it did hurt and that he touched his -- his pee part is what she 

called it and then she said swirling it around and playing with it. And 

then he kissed her on the lips and that he always does that and that he 

tried to get her to touch his private part but she said no.

On cross-examination, Lumsden asked Nurse Carriker if Allison had told her “when 

[she] came into the room” that she had come to see a doctor for an injury or for being 

hurt or sick, and Nurse Carriker said, “Not at that time.”

At the conclusion of the hearing, Lumsden objected to Nurse Carriker’s 

testimony as follows:

[Nurse] Carriker did not have any conversations with [Kelly], the child’s 

mother, saying she’s injured, she’s hurt, we’re seeking medical attention 

from you, which is what you would do if you were seeking a medical 

diagnosis or medical treatment. So we would argue that outcry does not 

come under any medical treatment hearsay exception. It does not come 

under any first person that’s -- she -- this child has made an outcry to 

because the very reason she’s there is law enforcement purposes, Your 

Honor. This child, by her own words, was not asking for treatment for

being hurt or injured or being sick. She was only there at the direction 

of the police and her mother, and her mother did not tell [Nurse]

Carriker that she was seeking her medical attention. It was all an act of 

the law enforcement, their search for evidence, Your Honor. 
44

And for that reason and all of those reasons, [Nurse] Carriker’s 

testimony on outcry or any medical opinions should be suppressed, 

Your Honor. 

After the State set forth its argument for admission of Nurse Carriker’s testimony as 

an outcry statement and Lumsden responded, the trial court ruled that Nurse Carriker 

could testify as an outcry witness and postponed its ruling on Lumsden’s hearsay 

objection. 

When Nurse Carriker testified before the jury, she said that her normal practice 

was to ask a child if she knew why she was there or if there was something that had 

happened to her that she was there to discuss or to talk about. When Nurse Carriker 

started the sexual assault examination of Allison, she was alone in the exam room with 

Allison because “a lot of times [children are] more open with us when there is not a 

parent in the room.” Nurse Carriker testified that the first thing she did with Allison 

was obtain a history to help her know where to look for injuries and to help diagnose 

any medical condition that she may have had. Nurse Carriker described Allison’s 

demeanor during the interview as “very matter of fact” and said that she had good eye 

contact and spoke very clearly. When the State asked Nurse Carriker what Allison 

had told her, Lumsden made a general hearsay objection. The trial court overruled 

Lumsden’s objection. Lumsden did not request a running objection. Nurse Carriker 

thereafter testified regarding what Allison had told her and explained the findings she 

had made during her head-to-toe physical examination of Allison. 
45

3. Analysis

Lumsden argues that the medical-diagnosis-or-treatment exception to the 

hearsay rule was inapplicable to Nurse Carriker’s testimony because Allison was 

unaware she was seeking a medical diagnosis and because there is no evidence that 

Allison understood the importance of being truthful with Nurse Carriker. Lumsden, 

however, made only a general hearsay objection when the State asked Nurse Carriker 

what Allison said had happened to her. Because Lumsden had not previously 

obtained a ruling on his hearsay objection to Nurse Carriker’s testimony, it was 

incumbent on him to repeat his specific objection when she testified at trial. See

Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Martinez v. State, 98 S.W.3d 

189, 193 (Tex. Crim. App. 2003). Lumsden therefore failed to properly preserve his 

complaint that the trial court abused its discretion by admitting Nurse Carriker’s 

testimony about Allison’s statements to her during the sexual assault examination. See 

San German-Reyes v. State, No. 03-15-00432-CR, 2017 WL 2229873, at *9 (Tex. App.—

Austin May 17, 2017, no pet.) (mem. op., not designated for publication) (holding that 

appellant failed to properly preserve his complaint that trial court erred by admitting 

SANE’s testimony about victim’s statements to her about sexual abuse because the 

State failed to demonstrate the veracity component of the exception).

Even if we assume that this issue had been properly preserved, the admission 

of the complained-of testimony was not error because it was admissible under the 

medical-diagnosis-or-treatment exception to the hearsay rule. The statements at issue 
46

were made by a victim to a SANE during the context of a sexual assault examination

at a hospital. Nurse Carriker interviewed Allison away from her mother, thus 

implicitly determining that Allison was sufficiently mature to be interviewed outside 

her mother’s presence. Nurse Carriker specifically testified that the statements that 

Allison made to her enabled her to know where to look on Allison’s body for injuries 

and to help diagnose any medical condition that Allison may have had. 

Lumsden argues that the hearsay exception in rule 803(4) is inapplicable 

because Allison testified that she did not ask to see a doctor or nurse and because she 

“was unaware she was speaking to a medical professional seeking medical diagnosis.” 

Lumsden has not cited, and we have not found, case law requiring the victim to ask to 

see a doctor or a nurse in order for the medical-diagnosis-or-treatment exception to 

apply. Additionally, the record reflects that Allison knew that she was talking to a 

nurse and was able to answer Nurse Carriker’s question regarding why she was 

there—because Lumsden had touched her privates. See Swofford, 2015 WL 7019762, at 

*4 (holding that trial court could have reasonably inferred from the record that victim 

was aware her statements were made for the purpose of medical diagnosis or 

treatment because when nurse asked why she was there, victim stated, “My daddy 

made me suck his private part to make it bigger”). Moreover, Allison told Nurse 

Carriker about being hurt or injured when she informed Nurse Carriker that the tear 

in her anus bothered her. Although no specific inquiry was made in this case to 

determine whether Allison appreciated the need to be truthful in her statements to 
47

Nurse Carriker, the circumstances under which Nurse Carriker examined Allison are 

circumstances that the trial court could have reasonably viewed as indicating that 

Allison would have known that she needed to be truthful. See Beheler, 3 S.W.3d at 189

(holding record supported conclusion that victim appreciated the need to be truthful 

in her statements to nurse).

After reviewing the entire record, we conclude that because the record 

demonstrates that Allison was a child of a sufficient age and apparent maturity and 

that she understood that she was at the hospital because of the sexual assault, she 

understood the need to be truthful during the sexual assault examination. See id. 

(holding evidence sufficient to support finding that seven-year-old child understood 

need for veracity in sexual assault examination after process was explained and child 

was interviewed alone, appeared calm and quiet, and knew why she was there); San 

German-Reyes, 2017 WL 2229873, at *11 (holding, even without a fully developed 

record of the conversation between nurse and victim, that victim was a child of 

sufficient age and maturity, that she was there because of a sexual assault, and that she 

understood the need to be truthful). Nurse Carriker’s testimony was therefore

admissible under the medical-diagnosis-or-treatment exception to the hearsay rule. 

See Franklin, 459 S.W.3d at 678 (holding SANE’s testimony was properly admitted as 

statements made for the purpose of medical diagnosis).17

 

17Because we hold that the complained-of statements were properly admitted 

under the medical-diagnosis-or-treatment exception to the hearsay rule, we need not 
48

Accordingly, we hold that the trial court did not abuse its discretion by allowing 

Nurse Carriker’s testimony regarding the statements Allison made to her during the 

sexual assault examination, and we overrule Lumsden’s fifth issue.18

D. Admission of State’s Exhibit No. 4

In his sixth issue, Lumsden argues that the trial court reversibly erred by 

admitting State’s Exhibit No. 4—Nurse Carriker’s handwritten report. When 

Lumsden objected during the trial to the admission of State’s Exhibit No. 4 as 

containing hearsay, the State responded that the exhibit constituted Nurse Carriker’s 

documents and findings as an expert. Lumsden argues on appeal that there is no 

exception to the rule against hearsay for the documents or findings of an expert.

Although the State gave an incorrect explanation for why the trial court should 

overrule Lumsden’s hearsay objection, we may uphold the trial court’s evidentiary 

ruling if it is correct on any theory of law applicable to the case. See Gonzalez, 

 

address Lumsden’s alternative argument that Nurse Carriker’s testimony was not 

admissible under article 38.072—the outcry exception to the hearsay rule. See Reed v. 

State, 497 S.W.3d 633, 638 (Tex. App.—Fort Worth 2016, no pet.) (holding that 

SANE’s testimony could have been properly admitted under rule 803(4) and not 

addressing appellant’s argument regarding the propriety of admitting the SANE’s 

testimony under the outcry exception).

18Furthermore, even if we assumed that the admission of Nurse Carriker’s 

testimony was erroneous, such error would have been harmless because the same or 

similar evidence was also offered through the testimony of Allison and Kelly. See San 

German-Reyes, 2017 WL 2229873, at *11–12 (holding that SANE’s testimony was 

properly admitted but also stating that it was harmless if it was admitted in error); 

Hanke v. State, No. 09-14-00326-CR, 2015 WL 5604680, at *7 (Tex. App.—Beaumont 

Sept. 23, 2015, no pet.) (mem. op., not designated for publication) (same).
49

195 S.W.3d at 126; see also Hailey v. State, 87 S.W.3d 118, 121 (Tex. Crim. App. 2002) 

(“It is well-settled that a Court of Appeals can affirm a trial court’s decision on a legal 

theory not presented to the trial court”), cert. denied, 538 U.S. 1060 (2003). Based on 

our review of the record set forth in issue five above, we held that Nurse Carriker’s 

testimony was admissible under the medical-diagnosis-or-treatment exception to the 

hearsay rule. Her handwritten report is similarly admissible under the medicaldiagnosis-or-treatment exception to the hearsay rule. See Tex. R. Evid. 803(4);

Martinez v. State, No. 01-15-00823-CR, 2016 WL 6803233, at *11–12 (Tex. App.—

Houston [1st Dist.] Nov. 17, 2016, pet. ref’d) (mem. op., not designated for 

publication) (stating that rule 803(4) may encompass medical records documenting the 

sexual abuse of children and upholding trial court’s admission of SANE’s report 

under medical-diagnosis-or-treatment exception to rule against hearsay), cert. denied, 

138 S. Ct. 214 (2017); Juarez v. State, No. 04-15-00413-CR, 2016 WL 1359372, at *7 

(Tex. App.—San Antonio Apr. 6, 2016, no pet.) (mem. op., not designated for 

publication) (upholding trial court’s admission of SANE’s report under medicaldiagnosis-or-treatment exception to rule against hearsay). Because a proper hearsay 

exception governs the admissibility of Nurse Carriker’s report, it is of no legal 

consequence that the State’s explanation for the admissibility of the report at trial did 

not fall within one of the hearsay exceptions. See Hailey, 87 S.W.3d at 121.

Moreover, Lumsden did not request a running objection or continue to object 

when Nurse Carriker testified to the contents of her report both prior to and after it 
50

was admitted into evidence. Nor did Lumsden object when Deleon testified 

regarding Nurse Carriker’s findings from the sexual assault examination of Allison. 

Because the preservation rule requires a party to object each time objectionable 

evidence is offered unless the party has obtained a running objection or has requested 

a hearing outside the presence of the jury, see Geuder, 115 S.W.3d at 13, and because 

unobjected-to testimony about objected-to evidence results in forfeiture of the 

objection, we hold that Lumsden forfeited any error in the admission of State’s 

Exhibit No. 4—Nurse Carriker’s report. See Leday v. State, 983 S.W.2d 713, 718 (Tex. 

Crim. App. 1998) (explaining that Texas applies the “futility rule,” meaning that 

despite a trial court’s ruling that evidence is admissible, a party must keep making 

futile objections on pain of waiver); Clay v. State, 361 S.W.3d 762, 767 (Tex. App.—

Fort Worth 2012, no pet.) (“[B]ecause Wallace provided testimony about the 

Louisiana records without objection before and after appellant’s objection to the 

admission of the records and because appellant failed to obtain a running objection, 

we conclude that he forfeited his objection to the records’ admission.” (footnote 

omitted)).

Accordingly, we overrule Lumsden’s sixth issue.

E. Admission of State’s Exhibit No. 13

In his seventh issue, Lumsden argues that the trial court reversibly erred by 

admitting State’s Exhibit No. 13—the video of Alvarado’s forensic interview of 

Allison. Lumsden contends that the video contained inadmissible hearsay that is not a 
51

prior consistent statement and that its probative value was substantially outweighed by 

unfair prejudice. 

1. Applicable Law

Texas Rule of Evidence 801(e)(1)(B) gives substantive, nonhearsay status to 

prior consistent statements of a witness “offered to rebut an express or implied 

charge against the declarant of recent fabrication or improper influence or motive.”

Tex. R. Evid. 801(e)(1)(B). Because this rule is similar to its federal counterpart, the 

Texas Court of Criminal Appeals has looked to the analysis provided in federal 

decisions. See Hammons v. State, 239 S.W.3d 798, 804 (Tex. Crim. App. 2007). The 

United States Supreme Court has explained the four requirements that must be met 

for prior consistent statements to be admissible under the federal counterpart:

(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. (citing Tome v. United States, 513 U.S. 150, 156–58, 115 S. Ct. 696, 700–02 (1995)). 

The rule sets forth a minimal foundation requirement of an implied or express charge 

of fabrication or improper motive. Id. In any event, “there need be only a suggestion 

that the witness consciously altered his testimony in order to permit the use of earlier 
52

statements that are generally consistent with the testimony at trial.” Id. (citation 

omitted). The fact that “there need be only a suggestion” of conscious alteration or 

fabrication gives the trial court substantial discretion to admit prior consistent 

statements under the rule. Id. Thus, the court of criminal appeals has noted

that a reviewing court, in assessing whether the cross-examination of a 

witness makes an implied charge of recent fabrication or improper 

motive, should focus on the “purpose of the impeaching party, the 

surrounding circumstances, and the interpretation put on them by the 

[trial] court.” Courts may also consider clues from the voir dire, opening 

statements, and closing arguments. From the totality of the questioning, 

giving deference to the trial judge’s assessment of tone, tenor, and 

demeanor, could a reasonable trial judge conclude that the crossexaminer is mounting a charge of recent fabrication or improper motive?

If so, the trial judge does not abuse his discretion in admitting a prior 

consistent statement that was made before any such motive to fabricate 

arose.

Id. at 808–09 (internal citations omitted).

2. Relevant Portion of the Record

During cross-examination of Deputy Floyd, Lumsden asked about the effect of 

asking a child leading questions:

Q. What are the concerns if somebody asked a child leading questions 

where the child just answers yes or no? What’s your understanding of 

what that can lead to, or inaccurate answers? Is that -- is that kind of 

what it leads to is some inaccurate answers?

A. Based on the questions that are being asked.

Q. Okay. And . . . if you just are asking a child and they just have to say 

yes or no, that may not tell the whole story. Is that fair to say?

A. That’s fair.
53

Q. And sometimes that’s -- an adult can put words in a child’s mouth if 

they ask a leading question and the child just has to answer yes or no. Is 

that fair to say?

A. That’s fair. 

Later during a hearing outside the presence of the jury, the State informed the 

trial court that it planned to offer the video of Allison’s forensic interview into 

evidence, and Lumsden made a general hearsay objection. The following discussion 

then took place:

[THE PROSECUTOR]: Okay. Judge, I believe he has opened the door 

for us to get in a prior consistent statement to rebut a recent fabrication. 

Because he went down the line of questioning, especially with Deputy 

Floyd, that isn’t it true that if you ask a child leading questions then this, 

which opens the door and leaves the impression to the jury that since, I 

guess, leading questions were asked that it’s possible that she was 

fabricating her story.

I have a case. It’s called Hammons v. State. It is 239 S.W.3d 798. 

In order to get in a prior consistent statement, there are four things that 

the Court must look at . . . .

It also states that there [are] minimal foundation requirements of 

an implied or express charge of fabrication, so just any -- any kind of 

implication that we have suggested or any kind of leading -- leading 

questions have suggested that -- that has tampered with her statement or 

that it’s made her -- her statements different than what it was at the time, 

that will allow the Court to let the forensic interview in. . . .

The trial court asked Lumsden what his specific objection was to the forensic 

interview, and he replied:

One objection is hearsay. The other one is we have not opened the 

door. The only question we asked the mother was she asked her a yes or 

no question. That was really the only thing that was asked, whether she 

was led with any questions or not. The question that -- to Officer Floyd 
54

was a generalization of when he’s working with children that sometimes 

you need to -- is if he’s -- if the child is asked leading questions, it can 

lead to unreliable responses.

[THE PROSECUTOR]: Which that’s my point exactly, that he’s 

left the impression with the jury that her responses are unreliable as they 

were in court today is what he’s saying, so that is a recent fabrication. It 

is implied, if not direct. As that case states, it’s -- a minimal foundation 

has to be laid that there’s any impression in front of the jury that her 

testimony has been somehow fabricated.

. . . .

THE COURT: And so the only prior consistent statement that 

you’re wanting to get into is the statement from the witness that it’s not 

fabricated? Is that what[] -- the video is going to purport to say?

[THE PROSECUTOR]: Right. That -- that her testimony today 

as to what happened is not a fabrication because she told the jury what 

happened, but it left in the mind of the jury that someone asking leading 

questions could have fabricated her answers. And so with that, when I 

was asking [Allison] questions, you know, as -- as a scared witness, I was 

somewhat leading her, but I want to show the jury because he left that 

impression with them that she did have prior consistent statements.

[DEFENSE COUNSEL]: I didn’t cross-examine the child 

witness to leave in any impression that she was fabricating any statement 

or had an ulterior motive or was put up to it, Your Honor, so, you know, 

that door would be closed there if I didn’t cross-examine the child.

. . . .

THE COURT: . . . [A]fter reviewing Hammons and just taking a 

specific look at [rule] 801, I believe that they’re entitled to offer the video 

by virtue of the line of questioning as to saying that an adult was leading 

them and it would cause her to give a response. I don’t know that 

there’s any way, at least by virtue of the rules, that it should be denied. 

So if the objection is simply hearsay, I think that I’ll overrule that

objection[,] and the video can be played as a prior consistent statement 

of the witness.
55

[DEFENSE COUNSEL]: Well, unfair prejudice to the 

Defendant, Your Honor.

THE COURT: If it’s simply a prior consistent statement, I can’t 

find that’s a [rule] 403 violation. 

3. Analysis

Lumsden’s cross-examination of Deputy Floyd did not imply that Allison had

recently fabricated her statements. Rather, he intended to show that Kelly’s use of 

leading questions the morning after the sexual assault had put words in Allison’s 

mouth regarding the alleged perpetrator from the outset. Lumsden’s trial strategy was 

largely focused upon convincing the jury that even though Allison may have been 

sexually assaulted, she had misidentified the perpetrator from the beginning, not that 

she changed her story later on, which is the situation to which rule 801(e)(1)(B) is 

intended to apply. See Tome, 513 U.S. at 158, 115 S. Ct. at 701; Hammons, 239 S.W.3d 

at 804; see also Klein v. State, 273 S.W.3d 297, 316–17 (Tex. Crim. App. 2008) (holding 

prior consistent statements of abuse by child complainant were admissible when child 

claimed during her testimony that her allegations of abuse were “improperly 

influenced by the State’s trickery in questioning her”). The trial court therefore 

abused its discretion by admitting the video of the forensic interview. See Woods v. 

State, No. 02-17-00367-CR, 2018 WL 5289461, at *10 (Tex. App.—Fort Worth Oct. 

25, 2018, no pet. h.) (mem. op., not designated for publication) (holding that trial 

court abused its discretion by admitting video of forensic interview because defense 

did not imply that victim had recently fabricated her statements).
56

Having found error, we proceed to a harm analysis. Because we determine that 

the error is not constitutional, rule 44.2(b) is applicable. Tex. R. App. P. 44.2(b). 

Texas courts, including this court, have repeatedly held that testimony about and 

recordings of a child’s statements concerning a sexual crime are harmless when other, 

unobjected-to evidence proves the same facts. See Matz v. State, 21 S.W.3d 911, 912–

13 (Tex. App.—Fort Worth 2000, pet. ref’d); Stephens v. State, Nos. 02-15-00046-CR, 

02-15-00047-CR, 2016 WL 2586639, at *4 (Tex. App.—Fort Worth May 6, 2016, pet. 

ref’d) (mem. op., not designated for publication) (collecting cases). 

The most important part of the video—Allison’s description of the incident 

that occurred on the couch—largely resembled her in-court testimony and her 

descriptions as testified to by Kelly and Nurse Carriker, which are detailed above. 

Although Allison’s description of the events in the forensic interview provided more 

detail than her trial testimony, it provided essentially the same story, and we find it 

unlikely that the jury was inclined to reject Allison’s story of sexual abuse but changed 

its mind after hearing it again in the recording. See Woods, 2018 WL 5289461, at *10–

11 (holding that erroneous admission of forensic interview video, in which child 

described abuse with more detail, was harmless); Todd v. State, Nos. 02-12-00114-CR, 

02-12-00115-CR, 2013 WL 1457735, at *5 (Tex. App.—Fort Worth Apr. 11, 2013, 

pet. ref’d) (mem. op., not designated for publication) (same); see also Shaw v. State, 

122 S.W.3d 358, 364 (Tex. App.—Texarkana 2003, no pet.) (“Because the State 

sufficiently proved the fact to which the hearsay relates by other competent and 
57

unobjected-to evidence . . . , we hold the admission of the hearsay constituted 

nonreversible error.”). We hold that the admission of the video of the forensic 

interview does not constitute reversible error. See Matz, 21 S.W.3d at 912–13.

We conclude that, in the context of the entire case against Lumsden, the trial 

court’s error in admitting the video of the forensic interview did not have a substantial 

or injurious effect on the jury’s verdict and did not affect Lumsden’s substantial 

rights. See King, 953 S.W.2d at 271. Thus, we disregard the error, see Tex. R. App. P. 

44.2(b), and overrule Lumsden’s seventh issue.

19

F. Admission of Testimony about Victim’s Fearfulness of Looking at Abuser

In his eighth issue, Lumsden argues that the trial court reversibly erred by 

allowing a witness to speculate that it “would be fearful for a child” to look her abuser 

in the face and identify him.

During the trial, which took place a year and a half after the incident, Allison

was asked to look around the courtroom and see if Lumsden was present. Allison 

testified that she did not see him. Allison was asked to look around the courtroom 

one more time and see if Lumsden was present, but she said that she did not see him; 

the record reflects that Lumsden was present in the courtroom at that time. During

Deleon’s testimony, the State asked:

 

19Based on our holding—that it was error for the trial court to admit the video 

of the forensic interview but that the admission was harmless—we need not address 

Lumsden’s rule 403 argument related to the admission of the video. See Tex. R. App. 

P. 47.1.
58

Q. Marco, in your training and experience, would it be uncommon for 

an eight-year-old abuse victim to be terrified to look her abuser in the 

face and identify him?

[DEFENSE COUNSEL]: Objection to speculation, Your Honor.

THE COURT: Overruled.

A. In my training, no, that would not -- that would be fearful for a child.

Q. That would be -- that would be common for a child to be fearful to 

look at her [abuser] in the face in open court and point them out?

A. Absolutely.

To preserve error, a party must continue to object each time the objectionable 

evidence is offered. See Geuder, 115 S.W.3d at 13; Martinez, 98 S.W.3d at 193. A trial 

court’s erroneous admission of evidence will not require reversal when other such 

evidence was received without objection, either before or after the complained-of 

ruling. Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010), cert. denied, 

562 U.S. 1142 (2011); Lane v State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004). 

As set forth above, after Deleon provided his answer to the objected-to 

question, Lumsden did not request a running objection, nor did he request a hearing 

outside the presence of the jury so that he would not have to continuously object. 

When the State followed up by asking Deleon a question almost identical to the initial 

objected-to question, Lumsden did not object. Because Deleon’s answer to the 

second question was received without objection, Lumsden failed to preserve error. 

See Tex. R. App. P. 33.1(a); Ethington v. State, 819 S.W.2d 854, 859–60 (Tex. Crim. 
59

App. 1991) (holding that appellant’s objection to the first question asked of witness 

did not preserve error as to the following three pages of questions and answers on the 

same subject when appellant failed to obtain a running objection or request a hearing 

outside the presence of the jury so that he would not have to keep objecting). We 

overrule Lumsden’s eighth issue.

G. Admission of Testimony about Lumsden’s Creating False Identities and 

Tampering with Government Records

In his ninth issue, Lumsden argues that the trial court reversibly erred by 

allowing the State to “get into the fact that [Lumsden] was ‘creating false identities’ 

and was charged with tampering with governmental records.”

1. Applicable Law

An accused puts his character for veracity in issue by taking the stand, and he 

may be impeached in the same manner as any other witness. See Hammett v. State, 

713 S.W.2d 102, 105 (Tex. Crim. App. 1986). Generally, prior offenses are 

inadmissible for impeachment purposes unless the offense resulted in a final 

conviction for either a felony or a crime involving moral turpitude and the conviction 

is not too remote in time. See Ochoa v. State, 481 S.W.2d 847, 850 (Tex. Crim. App.

1972); Turner v. State, 4 S.W.3d 74, 78–79 (Tex. App.—Waco 1999, no pet.); see also

Tex. R. Evid. 608, 609. However, an exception arises when a defendant testifies and 

leaves a false impression as to the extent of his prior arrests, convictions, charges 

against him, or “trouble” with the police generally. See Prescott v. State, 744 S.W.2d 128, 
60

131 (Tex. Crim. App. 1988); Ochoa, 481 S.W.2d at 850. In such a case, the defendant 

is deemed to have “opened the door” to an inquiry into the veracity of his testimony, 

and evidence of the defendant’s prior criminal record is admissible to correct the false 

impression. See Martinez v. State, 728 S.W.2d 360, 362 (Tex. Crim. App. 1987); Turner, 

4 S.W.3d at 79.

Generally, the false impression the State seeks to rebut must be created by the 

defendant through direct examination. See Wheeler v. State, 67 S.W.3d 879, 885 (Tex.

Crim. App. 2002). However, when a defendant voluntarily testifies on crossexamination concerning his prior criminal record, without any prompting or 

maneuvering on the part of the State, and in so doing leaves a false impression with 

the jury, the State is allowed to correct that false impression by introducing evidence 

of the defendant’s prior criminal record. Martinez, 728 S.W.2d at 362; see also Roberts v. 

State, 29 S.W.3d 596, 601 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). The only 

requirement is that, if the “opening door” testimony is volunteered by the defendant 

on cross-examination, it must be volunteered without any prompting or maneuvering 

by the State. Lopez v. State, 928 S.W.2d 528, 531–32 (Tex. Crim. App. 1996).

2. Relevant Portion of the Record

As set forth in the factual background above, Lumsden testified in his case in 

chief that he was convicted of fifth-degree burglary in Minnesota when he was sixteen 

years old and that he served time in prison. Lumsden also testified that he pleaded 

guilty to felony harassment in 1996 and received twenty years’ probation. Lumsden’s 
61

counsel asked if it was correct that Lumsden went back to prison in Minnesota on the 

felony harassment case, and Lumsden answered, “Well, not voluntarily[,] but I went 

back, yes.” 

Prior to the State’s cross-examination of Lumsden, the prosecutor alerted the 

trial court that she planned on getting into Lumsden’s “other priors. He has opened 

the door to the fake -- the false identity or the identity theft charges.” Lumsden’s 

counsel stated, “That was deferred adjudication. That’s not a criminal conviction, 

Your Honor.” The prosecutor responded that “[i]t’s not a criminal conviction, but he 

alluded to the fact that he -- he didn’t go back willingly to prison. But that’s why he 

went back. I mean, it’s -- it’s semi-opened the door to that.” The trial court 

overruled Lumsden’s objection that going into the “other priors” would be unfairly 

prejudicial. 

During cross-examination, the State questioned Lumsden as follows:

Q. (BY [PROSECUTOR]) So it’s your testimony that you don’t know 

why you got sent back to Minnesota?

A. I do not know why.

Q. Could it have been that you were tampering with government 

documents?

[DEFENSE COUNSEL]: Objection. It’s unduly prejudicial, 

Your Honor.

THE COURT: Overruled.

A. I mean, that’s -- that’s -- I guess that may have been what they said, 

yes, that maybe that’s why, I guess. I don’t know if that’s why.
62

The State then proceeded to ask Lumsden if he had tampered with government 

documents, such as birth certificates and Social Security cards, to create false identities 

for himself. 

3. Analysis

Here, Lumsden’s statement on direct—that he did not voluntarily go back to 

prison—did not give the impression that he was a law-abiding citizen. Instead, his 

statement implies that he had violated at least one of his probation conditions, which 

resulted in his return to prison. The relevant questions, the answers themselves, and 

the overall tenor of the cross-examination did not create a false impression with the 

jury concerning Lumsden’s prior criminal history. See Prescott, 744 S.W.2d at 131. 

Moreover, through cross-examination, the State maneuvered its questioning to elicit 

the answer from Lumsden that he did not know why he was sent back to prison in 

Minnesota. The State’s sole reason then for offering the evidence of Lumsden’s 

tampering with government records was to impeach him under rules 608(b) and 609. 

But the State conceded that this “other prior” was not a final conviction. 

Accordingly, we hold that the trial court abused its discretion by allowing the State to 

delve into the evidence of tampering with government records. See Montgomery v. State, 

810 S.W.2d 372, 392–93 (Tex. Crim. App. 1990) (op. on reh’g); West v. State, 

169 S.W.3d 275, 278–79 (Tex. App.—Fort Worth 2005, pet. ref’d) (holding that trial 

court abused its discretion by allowing State to ask appellant whether he had been 
63

arrested over twenty times because appellant did not “open the door” to 

impeachment evidence); see also Owen v. State, No. 02-03-00164-CR, 2004 WL 966323, 

at *8 (Tex. App.—Fort Worth May 6, 2004, no pet.) (mem. op., not designated for 

publication) (holding that trial court abused its discretion by allowing the State to 

impeach appellant with unadjudicated offenses in violation of rules 608(b) and 609).

Having found error, we proceed to a harm analysis. Because we determine that 

the error is not constitutional, rule 44.2(b) is applicable. See Tex. R. App. P. 44.2(b). 

First, the bulk of the testimony and physical evidence that was admitted for the jury’s 

consideration focused on the offenses for which Lumsden was on trial. Second, the

record contains ample evidence, as set forth in detail in previous analysis sections, 

supporting Lumsden’s guilt. Third, the character of the alleged error in permitting the 

State to question Lumsden about tampering with government documents was minor 

and likely played a small role, if any, in the jury’s deliberations. After the State asked

Lumsden whether he was sent back to prison for tampering with government 

documents, the State asked several follow-up questions to ascertain if Lumsden had 

created false identities for himself and why he had a birth certificate and a Social 

Security card that were not in his name. The State did not, however, dwell on this 

other offense. During its closing argument, the State mentioned only the Minnesota 

conviction that Lumsden received at age sixteen; it did not delve into the charge of 

tampering with government records or mention his creating false identities.

Additionally, the court’s charge instructed the jury 
64

that if there is any testimony before you in this case regarding the

defendant’s having committed offenses other than the offense alleged 

against him in the indictment in this case, you cannot consider said 

testimony for any purpose unless you find and believe beyond a 

reasonable doubt that the defendant committed such other offenses, if 

any were committed, and even then you may only consider the same in 

determining the state of mind of the defendant and the child; and the 

previous and subsequent relationship between the defendant and the 

child, if any, or the intent of the defendant, if any, in connection with the 

offense, if any, alleged against him in the indictment in this case, and for 

no other purpose.

The court’s charge further instructed the jury that

[a]ll persons are presumed to be innocent and no person may be 

convicted of any offense unless each element of the offense is proved 

beyond a reasonable doubt. The fact, that a person has been arrested, 

confined, or indicted for, or otherwise charged with, the offense, gives 

rise to no inference of guilt at his trial. 

We conclude that, in the context of the entire case against Lumsden, the trial 

court’s error in permitting the State to question Lumsden about tampering with 

government records did not have a substantial or injurious effect on the jury’s verdict 

and did not affect Lumsden’s substantial rights. See King, 953 S.W.2d at 271; West, 

169 S.W.3d at 281 (holding that trial court’s error in permitting the State to ask 

appellant whether he had been arrested more than twenty times did not have a 

substantial or injurious effect on the jury’s verdict and did not affect appellant’s 

substantial rights); Owen, 2004 WL 966323, at *10 (holding that trial court’s error in 

admitting testimony about appellant’s possession of fictitious credit cards and driver’s 

licenses was not harmful). Thus, we disregard the error, see Tex. R. App. P. 44.2(b), 

and overrule Lumsden’s ninth issue.
65

H. Sustaining State’s Objections to Lumsden’s Testimony

In his tenth issue, Lumsden argues that the trial court reversibly erred by 

sustaining the State’s “nonresponsive” objections to his admissible testimony. 

Lumsden challenges the following objections to his testimony:

Q. So it is your testimony that -- are all of your kids at home all the 

time?

A. No, not all the time.

Q. So you’re worried that [Kelly], who doesn’t work, and none of your 

children are in the home, you’re worried that she’s going to leave and all 

of the sudden you’re going to be with no child care?

A. That’s exactly correct. That’s exactly what it is, because my kids 

come all the time. And [Rhonda] -- I pick [Rhonda] up from school. I 

would take her on days where she wasn’t -- I didn’t just have --

[PROSECUTOR]: Object to nonresponsive.

THE COURT: Sustained after “That’s exactly correct.” 

. . . .

Q. And so if she had split -- I mean, if she had custody even on the 

first, third[,] and fifth and then every other Tuesday or Thursday or 

whatever the case may be, would that be more than three or four times?

A. She was supposed to have them more than three or four times, yes.

Q. Would [Allison] have been in your home more than three or four 

times?

A. Same statement. She should have been but she wasn’t. She didn’t 

come. She never -- she didn’t come. That’s what I’m telling you.

[PROSECUTOR]: Objection. Objection.
66

THE COURT: As to nonresponsive?

[PROSECUTOR]: Yes. I’m sorry, Judge.

THE COURT: Sustained.

. . . .

Q. You heard [Kelly] testify that you were the one who told her about 

those allegations. Correct?

A. No. That’s not what she said. She said we had talked about it six 

weeks prior to that.

[PROSECUTOR]: Objection. Nonresponsive.

THE COURT: Sustained.

. . . .

Q. So you said -- I guess you heard that [David] up there on the stand 

said that he never heard anything like that?

A. I heard him say that.

Q. Is [David] lying?

A. I wouldn’t know that he would be lying. Whether he remembered 

that two years ago, I don’t know, but he -- he -- he --

[PROSECUTOR]: Object to nonresponsive.

THE COURT: Sustained.

. . . .

Q. Burglary of a motor vehicle. So if I have this in my hand and it’s a 

transcript of that plea, are you denying that that’s why you were sent to 

the penitentiary for burglary?

A. Why I was --
67

Q. Would a court reporter be lying?

A. I don’t understand -- I wasn’t sent to prison for stealing a car. It was 

for burglary at the pool. That’s what -- that’s what -- that’s why I went. 

That’s what it says.

[PROSECUTOR]: Object to nonresponsive.

A. I don’t understand the question I guess.

THE COURT: Sustained.

. . . .

Q. And has it been your testimony elsewhere that you were only 16 

years old when you were sent to that big boy prison?

A. I -- yeah, I believe that it was -- I was 16 because I was 16 when it 

happened, so I -- I --

[PROSECUTOR]: Object to nonresponsive.

THE COURT: Sustained.

. . . .

Q. You were creating them but it was for a book. What were you going 

to do for that book?

A. I was writing a book about identity theft, how easy it is to assume an 

identity, create an identity. My identity had been used. My credit has 

been -- I was dealing with a credit repair agency, and I was very 

frustrated about --

[PROSECUTOR]: Objection. Nonresponsive.

THE COURT: Sustained.

. . . .
68

Q. (BY [PROSECUTOR]) Were you trying to get your mortgage 

broker’s license or were you writing a book?

A. I had a mortgage broker’s license already in Minnesota. I was already 

-- I was a broker for 15 years.

Q. Why couldn’t you get one in Texas?

A. I don’t remember that I couldn’t get one in Texas. I don’t remember 

if I could or couldn’t get one in Texas. I was already doing Texas loans. 

I don’t know if you -- that was 15 years ago. I don’t remember.

[PROSECUTOR]: Object to nonresponsive.

THE COURT: Sustained. 

. . . .

Q. And correct me if I’m wrong, but wouldn’t a patrilineal cousin have 

the same name as you?

A. Troy is cousins –

[PROSECUTOR]: Object. Nonresponsive.

THE COURT: Sustained.

When a witness answers a question and the trial court later sustains an 

objection to the question but does not instruct the jury to disregard the answer, the 

answer remains “before the jury” to be freely considered. See Estrada, 313 S.W.3d at 

313; Dozal v. State, No. 02-13-00478-CR, 2015 WL 120491, at *2 (Tex. App.—Fort 

Worth Jan. 8, 2015, no pet.) (mem. op., not designated for publication). Generally, no 

harm results when a jury is not instructed to disregard a witness’s answer after an 
69

objection is sustained. See Johnson v. State, 925 S.W.2d 745, 750 (Tex. App.—Fort 

Worth 1996, pet. ref’d).

Here, any error in sustaining the State’s nonresponsive objections did not affect 

a substantial right of Lumsden. The State objected to Lumsden’s answers as 

nonresponsive but did not seek a limiting instruction. Because the trial court did not 

instruct the jury to disregard Lumsden’s answers, the answers became part of the 

general evidence. See Estrada, 313 S.W.3d at 313; Dozal, 2015 WL 120491, at *2. 

Thus, because the jury could have considered Lumsden’s answers despite the trial 

court’s sustaining the State’s nonresponsive objections, we cannot conclude that the

record establishes harm under rule 44.2(b). See Tex. R. App. P. 44.2(b); Estrada, 

313 S.W.3d at 313; Dozal, 2015 WL 120491, at *2; Johnson, 925 S.W.2d at 750. We

therefore overrule Lumsden’s tenth issue.

I. Admission of State’s Exhibit No. 30

In his twelfth issue, Lumsden argues that the trial court reversibly erred by 

admitting State’s Exhibit No. 30—a binder of documents. The documents included a 

voter registration card, a driver’s license, a Social Security number, school records, a 

birth certificate, and a college degree for Raymond Robert Marcucci; a driver’s license

and a certificate of baptism for Raymond Edward Lumsden; a delayed registration of 

birth form, a birth certificate, a certificate of baptism, and a Headstart completion 

certificate for Anthony Ray Marcucci; school records and a delayed registration of 

birth form for Amanda Marie Marcucci; and a document entitled “Secrets for Getting 
70

a New Identity.” When the State offered the binder into evidence, Lumsden objected

as follows:

[DEFENSE COUNSEL]: We’d object as to the hearsay nature of the 

contents, Your Honor, unfairly prejudicial to the Defendant.

THE COURT: Just to make sure that I’m certain, [Prosecutor], I’ve 

heard the identification of a notebook and some in there. I’m assuming

that you’re offering that the documents in there are what they purport to 

be, that they’ve not been altered or deleted[,] and that they speak for 

themsel[ves]?

[PROSECUTOR]: Yes, Judge.

THE COURT: [Defense counsel], do you still have any objection?

[DEFENSE COUNSEL]: Same objections, Your Honor.

THE COURT: All right. Overruled.

When an exhibit contains both admissible and inadmissible material, the 

objection to the exhibit must specifically refer to the challenged material to apprise 

the trial court of the exact objection. Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. 

App. 1995). If the party who objects to the exhibit containing both admissible and 

inadmissible evidence does not specify which part of the exhibit is not admissible, the 

asserted error in admitting the evidence is not preserved for review. Wintters v. State, 

616 S.W.2d 197, 202 (Tex. Crim. App. [Panel Op.] 1981).

The exhibit to which Lumsden objected contains over thirty pages of various 

documents. Our review of the exhibit reveals that the exhibit contains at least some 

evidence that the trial court would not have abused its discretion by admitting. 
71

Specifically, the birth certificates constitute public records of vital statistics and thus 

would have been admissible under the exception to the hearsay rule found in Texas 

Rule of Evidence 803(9), and the certificates of baptism would have been admissible 

under the exception to the hearsay rule found in Texas Rule of Evidence 803(12). See

Tex. R. Evid. 803(9), (12).

Thus, in order to preserve error, Lumsden was required to identify for the trial 

court the portions of the documents within the exhibit that he considered 

inadmissible. Lumsden’s global hearsay objection to the entire exhibit, without 

specifying the documents that he found to be objectionable, failed to preserve error in 

the trial court’s admission of State’s Exhibit No. 30. See Sonnier, 913 S.W.2d at 518 

(holding general objection to entire video recording without specific reference to 

challenged material did not inform trial court of specific objection and did not 

preserve error for appeal); Rosales v. State, No. 03-15-00735-CR, 2017 WL 5247497, at 

*4 (Tex. App.—Austin Nov. 10, 2017, pet. ref’d) (mem. op., not designated for 

publication) (holding global hearsay objection to exhibit containing forty-seven pages 

of written statements did not preserve error); Williams v. State, 927 S.W.2d 752, 760 

(Tex. App.—El Paso 1996, pet. ref’d) (holding that by failing to specify which parts of 

State’s Exhibits 24 through 28 constituted inadmissible hearsay, appellant waived

error). 

To the extent that Lumsden attempted to object based on rule 403 that the 

documents were more prejudicial than probative, his general rule 403 objection was 
72

not specific enough to let the trial judge know why Lumsden believed that State’s 

Exhibit No. 30 was not admissible based on rule 403. See Resendez v. State, 306 S.W.3d 

308, 312–13 (Tex. Crim. App. 2009); Checo v. State, 402 S.W.3d 440, 451 (Tex. App.—

Houston [14th Dist.] 2013, pet. ref’d). Because Lumsden’s rule 403 objection was not 

sufficiently specific, he forfeited any error in the admission of the documents 

contained in State’s Exhibit 30. See Tex. R. App. P. 33.1(a)(1)(A); Page v. State, No. 02-

17-00019-CR, 2017 WL 4819404, at *3 (Tex. App.—Fort Worth Oct. 25, 2017, pet. 

ref’d) (mem. op., not designated for publication) (holding appellant’s general rule 403 

objections not sufficiently specific to preserve error for review); Checo, 402 S.W.3d at 

451 (same); Williams v. State, 930 S.W.2d 898, 901 (Tex. App.––Houston [1st Dist.] 

1996, pet. ref’d) (same). 

We overrule Lumsden’s twelfth issue.

VII. Cumulative Error

In his eleventh issue, Lumsden argues that “if this [c]ourt overrules the points 

of error in Issues One and Three (which are not subject to harm analyses) but finds

that the trial court did err as argued in Issues(s) Two, Four, Five, Six, Seven, Eight, 

Nine[,] and/or Ten and that each error was harmless, then the errors warrant reversal 

of the trial court’s judgment when considered cumulatively.” Even considering the 

evidentiary errors we deemed harmless—admitting the video of the forensic 

interview, admitting the testimony about Lumsden’s tampering with government 

records, and sustaining the State’s “nonresponsive” objections to Lumsden’s 
73

testimony—we do not believe that the cumulative effect of the admission of this 

evidence requires reversal. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. 

App. 1999) (“It is conceivable that a number of errors may be found harmful in their 

cumulative effect.”), cert. denied, 528 U.S. 1082 (2000); Flores v. State, 513 S.W.3d 146, 

174–75 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). Nothing in the record 

indicates that the State used the evidence to an unfair advantage or that the admission 

of the evidence deprived Lumsden of any constitutional rights or rendered the trial 

fundamentally unfair. See Flores, 513 S.W.3d at 175; see also U.S. v. Stephens, 571 F.3d 

401, 412 (5th Cir. 2009) (noting that cumulative-error doctrine compels relief only 

when constitutional errors “fatally infect the trial,” depriving a defendant of 

fundamental fairness). Moreover, Lumsden has not shown that the evidentiary errors 

“synergistically achieve the critical mass necessary to cast a shadow upon the integrity 

of the verdict.” See Linney v. State, 413 S.W.3d 766, 767 (Tex. Crim. App. 2013) 

(Cochran, J., concurring in refusal of pet.) (explaining the doctrine of cumulative 

error). We therefore overrule Lumsden’s eleventh issue.

VIII. Closing Argument at Punishment

In his thirteenth issue, Lumsden argues that the trial court erred, abused its 

discretion, and denied him his right to counsel by instructing the jury to disregard part 

of his closing argument during the punishment phase. The relevant portion of 

Lumsden’s closing argument is as follows: 
74

State talks about the enhancements. Enhancement from 1990 when Mr. 

Lumsden was 16 or 17 years old. You must decide that’s something you 

can hold against Mr. Lumsden, something that occurred 30 years ago.

[PROSECUTOR]: Objection, Your Honor, improper argument 

asking for jury nullification.

THE COURT: I’ll sustain the objection.

[PROSECUTOR]: Ask the jury to disregard the last comment by 

counsel.

THE COURT: Jury will disregard the last comment by counsel.

A. Standard of Review and Applicable Law

We review a trial court’s ruling on an improper-jury-argument objection by the 

State for an abuse of discretion. See Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. 

App. 2010), cert. denied, 565 U.S. 830 (2011). Permissible jury argument falls into four 

distinct categories: (1) summary of the evidence; (2) reasonable deductions from the 

evidence; (3) response to opposing counsel’s argument; or (4) a plea for law 

enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008), cert. denied, 

556 U.S. 1211 (2009). Improper denial of jury argument may constitute denial of the 

right to counsel if the argument is one the appellant is entitled to make. Davis, 

329 S.W.3d at 825 (citing McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim. App. 1989), 

cert. denied, 494 U.S. 1060 (1990)). That “holding assumes, inter alia, that the jury 

argument is one the defendant is entitled to make.” Id. Jury nullification20 is not an 

 

20Jury nullification refers to “the jury’s power to acquit a defendant out of 

refusal to apply the law to facts clearly evidencing a criminal violation.” United States v. 
75

argument that a defendant is entitled to make because there is no constitutional right 

to jury nullification and because there is no constitutional requirement that the jury be 

instructed on nullification. See Ramos v. State, 934 S.W.2d 358, 367 (Tex. Crim. App. 

1996), cert. denied, 520 U.S. 1198 (1997); Stefanoff v. State, 78 S.W.3d 496, 502 (Tex. 

App.—Austin 2002, pet. ref’d).

B. Analysis

Lumsden argues on appeal that he was entitled to make his jury nullification 

argument because it was a response to the State’s argument that when enhancements 

are proven beyond a reasonable doubt, punishment at the enhanced level is 

mandatory. Because the defendant does not have a constitutional right to instruct the 

jury on nullification, Lumsden was not entitled to make an argument for jury 

nullification. Accordingly, we hold that the trial court did not abuse its discretion by 

sustaining the State’s objection to Lumsden’s jury nullification argument. See McGee, 

774 S.W.2d at 238 (holding that trial court did not abuse its discretion by rejecting 

appellant’s argument, which was an incorrect statement of law and not an argument 

he was entitled to make); Nalls v. State, No. 02-16-00328-CR, 2018 WL 651193, at *8 

(Tex. App.—Fort Worth Feb. 1, 2018, no pet.) (mem. op., not designated for 

publication) (holding that trial court did not abuse its discretion by refusing to allow 

 

Burkhart, 501 F.2d 993, 997 n.3 (6th Cir. 1974), cert. denied, 420 U.S. 946 (1975). 

Although the jury has the power to nullify, “it is the duty of the jury to follow the law as 

it is laid down by the court.” Sparf v. United States, 156 U.S. 51, 74, 15 S. Ct. 273, 282 

(1895) (emphasis added).
76

defendant to argue jury nullification); Smith v. State, No. 01-12-00423-CR, 2014 WL 

2933220, at *7 (Tex. App.—Houston [1st Dist.] June 26, 2014, pet. ref’d) (mem. op., 

not designated for publication) (same). We overrule Lumsden’s thirteenth issue.

IX. Consecutive Sentences

In his fourteenth issue, Lumsden argues that the trial court abused its discretion 

by ordering his three life sentences to run consecutively. Lumsden argues that 

because criminal solicitation of a minor is not an offense for which Texas Penal Code 

section 3.03 authorizes consecutive sentences, his sentence for criminal solicitation of 

a minor must run concurrently with his other sentences. 

A. Standard of Review

We review a trial court’s decision to cumulate sentences for an abuse of 

discretion. See Tex. Code Crim. Proc. Ann. art. 42.08(a) (West 2018). The trial judge 

has absolute discretion to cumulate sentences if the law authorizes the imposition of 

cumulative sentences. Byrd v. State, 499 S.W.3d 443, 446 (Tex. Crim. App. 2016). A 

trial court abuses its discretion if it imposes consecutive sentences where the law 

requires concurrent sentences. Id. at 447.

B. Applicable Law

Texas trial courts have the discretion to order cumulative sentences in virtually 

every case. See Tex. Code Crim. Proc. Ann. art. 42.08(a). The principal exception to 

this rule is found in penal code section 3.03(a), which provides that when a defendant 

is found guilty at a single trial of more than one offense arising out of the same 
77

criminal transaction, the sentences for each offense must run concurrently. Tex. 

Penal Code Ann. § 3.03(a) (West Supp. 2018). But section 3.03(b)(2)(A) creates an 

exception to this exception; that is, it exempts certain offenses, including indecency 

with a child and aggravated sexual assault of a child, from the application of section 

3.03(a), thus allowing the trial court to order the sentences to run concurrently or 

consecutively. Id. § 3.03(b)(2)(A).

C. The Trial Court’s Cumulation Order

The State filed a motion for cumulative sentences, requesting that any 

sentences imposed in Count I (aggravated sexual assault of a child) and Count II

(indecency with a child) run consecutively. The trial court heard the State’s motion 

before sentencing Lumsden and granted the motion. When the trial court sentenced 

Lumsden to life on each of the three counts that he was convicted of, the trial court 

stated, “As per the judgment, the sentences will run consecutively.” The judgment 

states that “[t]he sentence imposed under Count II of the indictment shall commence 

when the sentences imposed in Count I and Count III cease[] to operate.” 

D. Analysis

Lumsden was convicted of two of the offenses enumerated in section 

3.03(b)(2)(A): section 21.11 (indecency with a child, as set forth in Count II) and 

section 22.011 (aggravated sexual assault of a child, as set forth in Count I). The 

legislature gave the trial court the discretion to have sentences for these crimes run 

concurrently or consecutively. See Nguyen v. State, 359 S.W.3d 636, 643 (Tex. Crim. 
78

App. 2012) (explaining legislative history of section 3.03 and stating that “[a]t the 

behest of prosecutors, [s]ections 3.03(b)(2)(A) & (B) were added to give trial judges 

the authority to cumulate sentences for multiple sex offenses against children that 

were part of a single criminal episode”). The trial court elected to have the sentences 

for Counts I and II run consecutively, which was allowed by law and clearly not an 

abuse of discretion. See Millslagle v. State, 150 S.W.3d 781, 784–85 (Tex. App.—Austin 

2004, pet. dism’d, untimely filed). Similarly, because criminal solicitation of a minor is 

not listed in the exception to the exception found in section 3.03(b)(2)(A), the trial 

court properly allowed Count III to run concurrently with Count I. See Tex. Penal 

Code § 3.03. Accordingly, we overrule Lumsden’s fourteenth issue.

X. Conclusion

Having overruled Lumsden’s fourteen issues, we affirm the trial court’s 

judgment.

/s/ Bill Meier

Bill Meier

Justice

Publish

Delivered: November 8, 2018