Opinion filed October 3, 2013

In The

Eleventh Court of Appeals __________

No. 11-11-00270-CR

__________

JUSTIN MILLER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 385th District Court

Midland County, Texas

Trial Court Cause No. CR36352

M E M O R A N D U M O P I N I O N

The jury found Justin Miller guilty of aggravated sexual assault of a child 

and assessed punishment at confinement for fifteen years and a $10,000 fine. The 

trial court sentenced Miller accordingly. We affirm.
2

Miller presents six issues for review. In his first and second issues, Miller

argues that the trial court abused its discretion when it allowed the investigating 

detective and the sexual assault nurse examiner (SANE) to give an opinion as to 

the veracity of the complaining witness. Miller alleges in his third and fourth

issues that the trial court erred when it restricted Miller’s impeachment of the 

outcry witness regarding a prior inconsistent statement that she had made to the 

investigating detective and when it denied his motion for new trial based on the 

same ground. In his fifth and sixth issues, Miller asserts that the trial court abused 

its discretion when it submitted an overly broad response to a note from the jury 

and when it denied his motion for new trial based on the same alleged error. Miller

does not challenge the sufficiency of the evidence.

The complaining witness, R.R., is Miller’s eight-year-old half sister. 

Jackie R. is the mother of R.R. and Miller. Miller was adopted by Gayle and 

Thomas Miller when he was one week old. Miller and his birth mother, Jackie, 

made contact with one another and arranged to meet for the first time at the 

Millers’ home. The Millers and Jackie’s family spent the day together, and after 

dinner, R.R. and Miller went to Miller’s room to play darts and video games. L.M. 

(Miller’s sister) and T.R. (R.R.’s brother) played in L.M.’s room. R.R. testified 

that, while they were lying on Miller’s bed playing the D.S. (a handheld gaming 

system), Miller rubbed the inside of her private with his finger. She told him to 

stop because it hurt. He stopped for a few minutes and then started touching her

again. R.R. told him she had to go to the bathroom. She got up and went to the 

restroom, but she could not go to the bathroom because it hurt too badly. R.R. 

went to her mother, Jackie, and told her that she needed to talk to her in the 

restroom. Jackie went with her to the restroom, and R.R. told her what had

happened.
3

Jackie testified that R.R.’s vagina was red and raw. She told her husband 

and Gayle what R.R. told her had happened. Jackie and Gayle confronted Miller 

with the allegation, and Miller denied touching R.R. in any inappropriate way. 

Jackie’s family left the Millers’ home and went on vacation. Several weeks after 

returning home from vacation, Jackie contacted the police and reported the 

incident. Miller was subsequently charged with aggravated sexual assault of a 

child.

We will first address Miller’s contention that the trial court allowed the 

investigating detective and the SANE nurse to give an opinion as to R.R.’s

veracity. On appeal, Miller complains that Bill Anderson, the investigating 

detective, directly commented on the complainant’s credibility when he testified as 

to why he believed the forensic interview was true. Defense counsel called 

Detective Anderson to testify and the following exchange occurred:

Q. And then you accepted the CAC interview as far as what the 

child said as being true; is that correct?

A. That’s correct.

During the State’s cross-examination, the prosecutor asked, “Also, [defense 

counsel] asked you on direct, did you believe the CAC was true, and you stated 

yes. Why did you believe the CAC interview was true?” Defense counsel 

objected and made the following argument: “This is speculation. I asked him if he 

assumed that it was true, not whether it was true, to show the witness’s -- this 

witness’s state of mind and the way he conducted the investigation, not his 

opinion, so I object.” The trial court overruled the objection, and 

Detective Anderson answered, “You look at the demeanor, how the child answers 

a question, body language and things like that. And that’s what helps us believe in 

the truth of the matter with a child during the interview.”
4

During redirect by defense counsel, the following exchange occurred:

Q. Now, you’ve testified to the ladies and gentlemen of the 

jury that you watched this CAC video and you found her to be

credible; is that correct?

A. That’s correct. 

A witness’s direct opinion on the truthfulness of another witness is 

inadmissible. Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997); Yount v. 

State, 872 S.W.2d 706, 711–12 (Tex. Crim. App. 1993) (op. on reh’g); Arzaga v. 

State, 86 S.W.3d 767, 776 (Tex. App.—El Paso 2002, no pet.). Here, however, 

Detective Anderson did not directly comment on R.R.’s truthfulness in response to 

the prosecutor’s question. Instead, Detective Anderson listed factors that he relied

on to determine the truthfulness of a child during an interview. He did not state 

specifically what he looked for when he reviewed R.R.’s CAC interview, nor did 

he testify as to what his conclusions were regarding R.R. The only time 

Detective Anderson testified as to whether R.R.’s interview was true or credible 

was when he agreed with defense counsel that he accepted the interview as true 

and when he agreed with defense counsel that he found R.R. to be credible. 

Because Detective Anderson did not directly comment on R.R.’s truthfulness in 

response to the prosecutor’s question, the trial court did not err. We overrule 

Miller’s first issue. 

Miller also complains that Araceli Desmarais, the SANE nurse, directly 

commented on the complainant’s credibility when she testified that, based on her 

exam and the history given by R.R., her impression was sexual abuse with normal 

findings. Specifically, Miller contends that this testimony, along with Desmarais’s 

recount of the statements R.R. made to her during the exam, was an improper 

attempt to bolster R.R.’s unimpeached, prior consistent testimony.
5

Defense counsel made numerous objections throughout Desmarais’s 

testimony. The following exchange took place before the trial court regarding 

Desmarais’s findings:

Q. (BY [PROSECUTOR]) Based upon your examination, the 

history given to you by [R.R.], what were your findings?

[DEFENSE COUNSEL]: Once again -- and to the extent that 

she’s going to testify as to any conclusion about a sexual a [sic]

assault, I will object. And I don’t know the answer, but I want to 

preserve my objection, your Honor.

THE COURT: That’s overruled.

Q. (BY [PROSECUTOR]) You may answer.

A. My impression was sexual abuse with normal genital and 

anal exam.

The trial court sustained defense counsel’s objection to the State’s prior question 

that asked whether the exam confirmed that a sexual assault took place. As to that 

question, defense counsel objected on the grounds that it called for a legal 

conclusion, presupposed facts that Desmarais had no personal knowledge of, and 

was beyond the scope of Desmarais’s expertise. Defense counsel also objected to 

Desmarais testifying as to the statements R.R. made to her during the exam on the 

grounds that the State had not laid the proper predicate for the medical diagnosis 

exception to the hearsay rule because the State had not shown that R.R. was aware 

of the importance of telling the truth during the exam.

Although defense counsel objected to Desmarais’s testimony on numerous 

occasions, none of the grounds stated were for improper bolstering, commenting 

on the credibility of the complainant, or giving an opinion as to the veracity of the 

complainant. Because Miller’s contentions on appeal do not comport with his 

objections at trial, he has not preserved error for appellate review. TEX. R.
6

APP. P. 33.1; Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986). 

Miller’s second issue is overruled.

In his third and fourth issues, Miller contends that the trial court erred when 

it restricted Miller’s impeachment of Jackie by not admitting extrinsic evidence of 

a prior inconsistent statement that Jackie had made to Detective Anderson. Jackie 

testified at trial that the first thing R.R. told her in the bathroom was, “Mommy, 

Justin hurt me.” Defense counsel asked Jackie whether she had told 

Detective Anderson that the first thing R.R. said to her in the bathroom was that 

her tee-tee hurt and burned. Jackie did not deny making the statement to 

Detective Anderson. She testified that she did not recall the sequence in which she 

made the statements to Detective Anderson and admitted that she may have told 

Detective Anderson the statements out of order from the order in which R.R. said 

them to her.

Miller argues that, because Jackie denied making the statement to 

Detective Anderson, defense counsel was permitted to ask Detective Anderson 

about the out-of-court statement. However, while the jury was present, defense 

counsel never asked Detective Anderson whether Jackie made the statement, and 

the trial court, therefore, never ruled on its admissibility. Miller only asked 

Detective Anderson about the statement during a bill made outside the presence of 

the jury. Defense counsel did move to admit the excerpt of the statement during 

his examination of Jackie. The trial court sustained the State’s objection on the 

ground that Jackie admitted making the statement. Because Jackie did not deny

making the statement, extrinsic evidence of the statement was inadmissible. See 

TEX. R. EVID. 613(a). The trial court did not err when it restricted Miller’s 

impeachment of Jackie regarding the prior inconsistent statement. Because the 

trial court did not err when it restricted Miller’s impeachment, the trial court also 
7

did not err when it denied Miller’s motion for new trial based on this ground of 

alleged error. Miller’s third and fourth issues are overruled.

Miller argues in his fifth and sixth issues that the trial court erred when it 

submitted an overly broad response to a note from the jury. Article 36.28 of the 

Texas Code of Criminal Procedure provides in part that “if the jury disagree as to 

the statement of any witness they may, upon applying to the court, have read to 

them from the court reporter’s notes that part of such witness testimony or the 

particular point in dispute, and no other.” TEX. CODE CRIM. PROC. ANN. art. 36.28 

(West 2006). If the trial court determines that the jury’s request is proper under 

Article 36.28, the trial court must then interpret the request and decide which 

portions of the testimony will best answer the request. Brown v. State, 870 S.W.2d 

53, 55 (Tex. Crim. App. 1994). We will not disturb a trial judge’s decision under 

Article 36.28 unless a clear abuse of discretion and harm are shown. Id. 

During deliberations, the foreman of the jury sent the following note to the 

court: “We would like to have the following testimony read back to us: When 

[defense counsel] asked [R.R.] about ‘I have told you everything my mommy told 

me to tell you.’ We are in disagreement about this.” The State objected to the trial 

court reading back only the question and answer relating to the issue from defense 

counsel’s examination of R.R. and requested that the State’s questions to R.R. on 

the same issue be included in the testimony provided to the jury. The trial court 

initially agreed with Miller and ruled that only the question and answer from

defense counsel’s examination would be read to the jury. The trial court then 

brought the jury into the courtroom, and the following exchange occurred:

THE COURT: You sent a note out and you -- do you have that 

note with you or is it back in the jury room?

PRESIDING JUROR: I left it in the room.
8

THE COURT: That’s all right. I believe the note was -- it was 

in quotes, the question that you had a disagreement about. And the 

question was when --

PRESIDING JUROR: Yes, that line of questioning.

THE COURT: -- [defense counsel] asked [R.R.] if her -- if she 

told the -- if her mama told her what to say. Is that what you’ve got a 

disagreement with?

PRESIDING JUROR: Yes.

THE COURT: Okay. And nothing else about her testimony on 

that, but just that one -- on that interview, nothing else about her 

testimony on the interview is in disagreement?

PRESIDING JUROR: Not -- not as --

THE COURT: But this is what you wanted, right?

PRESIDING JUROR: Yes, sir.

[PROSECUTOR]: Your Honor, may we approach?

THE COURT: Yes, ma’am.

(AT BENCH, ON THE RECORD)

[PROSECUTOR]: I don’t believe that it’s just in a 

disagreement. He just said a line of questioning pertaining to that. 

That’s what he said twice.

[DEFENSE COUNSEL]: He said it. 

THE COURT: I’m going to get Monica to read it.

(OPEN COURT, JURY PRESENT)

THE COURT: Monica, read [the presiding juror’s] statement 

back to me.
9

(Requested portion read)

THE COURT: His answer was, “That line of questioning.”

Is it that line of questioning, [presiding juror]?

PRESIDING JUROR: Yes, sir.

The State again moved to have the line of questioning from both defense counsel’s 

and the State’s examination of R.R. read back to the jury. The trial court changed 

its ruling and read the testimony of the witness on the disputed issue from both 

examinations.

Miller argues that including R.R.’s testimony from the State’s redirect was 

outside the scope of the jury’s request and was an improper comment on the 

evidence. We do not agree. Although the presiding juror initially stated that the

jurors were in disagreement about defense counsel’s question regarding “I have 

told you everything my mommy told me to tell you,” the presiding juror responded 

to the court’s inquiry that the jurors were in disagreement about the “line of 

questioning.” The trial court could have interpreted that statement to mean that the 

jury was in disagreement as to the entire testimony regarding whether R.R. told the 

counselor what her mother told her to say. See, e.g., Iness v. State, 606 S.W.2d 

306, 314 (Tex. Crim. App. 1980) (holding trial court did not abuse its discretion 

when it interpreted the sentence “we are in disagreement concerning this matter” as 

an expression of disagreement concerning the entire testimony relating to 

penetration even when the first part of jury’s request specifically asked about the 

prosecutor’s questions to witness).

We hold that the trial court did not abuse its discretion when it read R.R.’s 

entire testimony pertaining to whether she told the counselor what her mother told 

her to say. Because the trial court did not err when it read the entire testimony 
10

back to the jury, the trial court also did not err when it denied Miller’s motion for 

new trial based on this ground of alleged error. Miller’s fifth and sixth issues are 

overruled.

We affirm the judgment of the trial court.

JIM R. WRIGHT

CHIEF JUSTICE

October 3, 2013

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Willson, J.