## In t he Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 22

- 00039

- CR

_

__________________________

On Appeal from the 297th District Court Tarrant County, Texas Trial Court No. 1552246D

Before Sudd erth, C.J.; Ker r and Walker, JJ.

M emorandum Opinion by Justice Kerr 

### A ARON 

### R OJAS 

### J R


### . , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION Aaron R ojas Jr

. ap peals from his convictions for continu ous sexual abuse o f a
young child, aggravated sexual assault of a child , prohibited sexual conduct , and two

coun ts of sexual as sault of a child

. A jury con victed R ojas and assessed h is punishment , and th e trial court s entenc ed him a ccording to the jury ’ s verdict s . Rojas appeals from his convictions and raises five points : (1) the trial cour t erred by givi ng an oral jury instruction “ that conveyed the [trial] court ’ s opinion and directed the j ury toward a finding of g u i lt ” ; (2) the trial court abused its discretion by admitting the fore nsic interviewer ’ s e xpert opini ons regarding the truth an d ve racity of t his case ’ s vict im and an extraneous

- offense victim ; (3) the trial cour t abused its discre tion by admit ting hearsa y f rom t he for en sic interviews of t hose victim s ; (4) the trial court abused its discretion by admitting extraneous

- offense ev ide nce in violatio n of Texas Rule of Evidence 40 3; and (5) the trial court abused it s discretion by admi tting “ jail phone c all s contain ing hearsay without a proper business

- records ex ception. ” We will affirm.3 I. Background In 2007, w h en A.S. (Anne) 1 was eight year s old, she and her mot her be gan living with R o jas

. Rojas w as Anne ’ s mother ’ s b oyfriend and was a father figure to Anne

. Sh e co nsidered Rojas to be her stepfather and called him “ Dad. ”
O ne mo rning s oo n after Anne an d her mothe r had move d in , Rojas wok e up A nne by touchi ng her over her clo thes. Ro jas then pul led down Anne ’ s pajam a pants

an d underwear, got on top of her, and rubbed his p enis on her vagina until he ejaculated. Roj as committed th i s and similar acts about 40 ti mes over the next year o r

two
. S ometimes he touched Ann e ’ s vagin a with his ha nd, and on one occas ion, he had Anne touch h is penis with her hand.
In late 2008 or early 2009, one of Ro jas ’ s bi ological daug hter s , C.R. (Cla ire) , who was then 16 years old , moved in wi th Rojas, Anne ’ s mother, and Anne. C laire

a ccuse d Rojas of sexually assaulti ng her in sp ring 2009

. Soon after the all e ged assault , Clair e was interview ed by Li ndsey Dula, a forensic interviewer with Alliance for
Ch ildren

. Claire ’ s accusat ion led CPS to remov e then

- nine

- year

- old Anne from the home

an d t o in terview her. Anne denied any ab use . CPS made a findin g of “ u nable to determine , ” and Anne was returne d to the home

. 2

1 We use ali as es to p ro tect the identi ties of those involved i n th is cas e wh o we re minors at th e time the o ffe nses were committed

. See Tex. R. A p p. P

. 9.8 cmt., 9.1 0(a)(3)

.4 For a time, Rojas stopped sexual ly abus ing A nne . When the abuse r esumed, its frequen cy increased , and in additi on to Rojas ’ s rubbing his penis on Anne ’ s vagin a, Rojas w ould perform or al sex on her

. Around this t ime, Anne began physically resisting Ro jas ’ s advances , leading him to start se xually abusing Anne a t knifepoint

. Anne quickly stopped fighting back, and Rojas ev entually stopped thr eat e ning
her with a kni fe

. But the sexual abuse continued

. Rojas began putting hi s penis in
A nne ’ s mouth

. And starting w hen Anne was a fres hman in high sc hool, Ro jas forced Anne to have s exual intercourse with him nearly every day. Aro und t his time, A nne s tart ed feel ing like she was in a romantic rela tionship with R o jas

. T h ey u s ed endearments with eac h other , and s he would send h im n u de pho to graphs of herself , loving text m essages , a nd greeting cards

. At the same time , however, Anne ’ s j ournal entries we re f illed w ith fear, depr essio n, and suicidal thoughts. At leas t one en try directly mentioned Rojas ’ s abuse : I want to live with m y sist ers but I can ’ t. I know I can ’ t because they will call the cops, and I ’ ll be right back here and have a worse life

. . . . I feel like his f uck ing sex toy that all he wants from me since I was eight

. I wish he would have killed me when I w as 12 when h e used to brin g knives into my room. He should have killed me. He should have st opped when I told him to. On June 25, 2018, Ro jas had sexual intercourse with then

- 18

- year

- old Anne

. Later that day, Anne met w ith t wo of her fr iends and told them that Rojas had

2 T he A rl ington Police De p artment inve stigated C laire ’ s accusations in 2009

. The case was eventually “ rendered inactive ” or “ pende d , ” and Rojas w as no t arrested or prosecuted

.5 sexually abused her for years. Anne then immedi atel y told her two sis t ers about the abuse , and one of them called t he police. That same d ay, Anne went to the Grand
Pra ir ie Police Depa rt ment where sh e was interviewed by then

- Detective Greg Parker

. 3 Late that night , Anne went to a hospital where a sexual

- assault nurse e xaminer (SANE) examined her

. R ojas was arre sted. After his arre st, A nne a nd her sisters returned to Ro jas ’ s home a nd retri eved her journ als from their hiding place. On e of An ne ’ s sister s told
De te ctive Parker about the journals , and he photocopied the journ als ’ pa ges . Rojas w as concern ed about Anne ’ s journals

. While h e wa s in the Gra nd P rairie jail awai ting trial, he spoke with family members (not Anne or C laire ) using the jail ’ s tele phone system , wh ich record ed all inmate telephone call s. During one of th ese

ca lls , Rojas asked h is daughter w hether Anne ha d t aken “ thos e littl e booklets that she would use to write stuff

. ” He a dmitted that Anne ’ s j ourn als contained “ evidence ” about hi m because Anne would “ wr ite ever yth in g down ” and that the jour nal s would

“ say . . . that [he] did thos e things. ” Rojas also a dmitted to his daughter tha t he and Anne had been “ having r elat io ns ” but claimed that it was at Anne ’ s insistence

. During De tective Parker ’ s in ves tiga tion, he lear ned about Cla ire ’ s 200 9 accusations a gainst R ojas and that the Arlington Police Department had not

3 At the t ime of t rial, Parke r wa s a patrol serg ea nt with the Grand Pr airie P olice Department

.6 pursued t he case. After interviewing Claire, Detec tive Parker filed anothe r case against Rojas based on her allegations

. T he case involving Anne as the co mplainant w as t r ied to a jury i n February
2022

. B y this time, Anne was 22 years old , and Claire was 29. B oth wo men testified

a bout R ojas ’ s abus e. Additio nally, th e jury heard testimony from , among other s , t he
S ANE ; Dete ctive P ark er , who testified abo ut h is investig ation ; and Dula, who testifie d as an expert on child

- abus e dynam ic s . Anne ’ s journal e ntries and record ings of R ojas ’ s jail calls wer e admit ted in to evidence. Rojas ’ s de fense witnesses included his

w

ife (from whom he had long been separated); his sister ; and on e of his other da ughters. All three women testified that R ojas had n ever sexually abused the m , tha t their childre n had never cl aimed to have been abused by him , and that they had no concerns abo ut his being around their chi ldren

. T he jury was charg ed o n

• con tinuous sexual abuse of a young child (paragraph 1 );

• l esser

- included offenses of the continuous

- sexua l

- abuse of f

ense alleged in paragraph 1 : aggra v at ed sexual ass ault of a child ( paragraph s 2 and 3 ) and indecency with a child ( paragrap h 4);

• a ggrav ate d sexual assault of a child ( paragraph 6 ) ; 4

• se xual ass ault of a child ( paragraph s 7 & 8); and

• p ro h ibit ed sexual conta ct (paragraph 9).

4 The charge contained no paragraph 5

.7 The jury found Roj as g uilty of c ontinuous sexual abuse of a young child ( paragr aph 1); aggravate d se xual ass a ult of a ch ild ( paragraph 6 ); sexual assault of a child ( paragrap h s 7 & 8); and p rohibite d sexual contact ( paragra ph 9)

. The jury

assesse d Rojas ’ s punishment at 40 years ’ inc arceration for paragraph 1 ; 3 0 year s ’
inc arc eration for p aragr aph 6 ; and 10 years ’ incarceration for each of par agr aphs 7, 8 , and 9

. The trial court sentenced Rojas accord ingly

. Rojas timel y filed and p re sented a motion for new trial and t hen timely filed and pres ented an a mended new

- trial motion

. See Tex. R. A p p . P. 21. 4 , 21.6

. The

mo tion was deemed d enied

. See Tex. R. App. P. 21.8 (c)

. II. The Trial Court ’ s Oral Res ponse to a Jury Note During th e jury ’ s guilt

–

i nnocence d e liberations , th e trial court orally respon ded

to a written jury note
. In Rojas ’ s first point , he complains that the trial court ’ s

“ s ubstantive [oral] response to a jury ’ s question dur ing del i b erations amount s to a n add itional or s upplem ental ju r y instruction

. ” H e co mplains that not only did the tr ia l

cour t violate t he Texas C ode of C rimi nal Procedure ’ s pr o hibition against orally instructing the jury during deli berations but that the tr ial court impro perly comme nted on the w eight of the e vidence w hen doing s o. See Tex. Code Crim. Proc. Ann

. arts
. 36.14, 36 .27, 38.05. We start b y recounting the tr ial court ’ s comment s and their

cont ext . We will nex t address whether Roj as preser ved his complai nts for our review. Finally , we will a ddress the m erit s of R ojas ’ s complaints as neces sary.8 A. T he tri al cou rt ’ s co mme nts and their context
W hile delibe rat ing , the jury sent out a note: “ If we are un able to agree on [ paragr aphs ] 1, 2 & 3, ar e we able t o mo ve on to the rest ([ paragraph s ] 4, 6, 7, 8, 9 )[?] What happ ens if we can ( no t) agre e unanimou sly o n [ para gr aphs ] 1, 2 & 3?” In open court, with the State, Rojas , and the jury present, t he trial court orally responded , “ I have reviewe d your note a nd recei ved your note. Here are your v e rdict form s. Th ey will give you a progressive order of wha t you sho uld do with y our verdict s and the application paragraphs. ” T he trial court then read from applica t ion paragraph 1 in the v erdi ct forms:
If yo u find

-- in paragraph 1, if you f i nd the defendant guilty o f c ontinuo us sexual abuse of a young child o r children, stop here an d only consider application pa ragraphs 6, 7, 8, or 9 a nd do not consider application paragrap hs 2, 3, or 4. If y ou find the d ef endant no t guilty of continu ous se x ual abuse of a young c hild or childr en, or if you are unabl e to unani m ously agre e, [ 5 ] please procee d to application paragra phs 2, 3, 4, 6, 7, 8, an d 9. The trial court co ncl uded by sayin g, “ I believe t he answer to your question is with i n the application paragraph 1 of your jury instru cti ons. ” Neithe r Rojas nor the S tate objected to the trial court ’ s respon se to the jury ’ s

note.

5 A s the State poin ts o ut, this language c omported with the law in place a t the time of trial, but the Texas Court of Crim inal Appeals has r ecently h eld t hat “ a jury must be required to agree on an acquittal of the greater offense before it ca n return a convi ction on a lesse r- in cluded offense. ” Sandoval v. State , 665 S.W.3d 496, 537 (Tex. Crim. App. 2022)

.9 B. Error preservation Rojas frames th e first part of this point as jury

- ch a rge error , compla i ning about both the trial court ’ s procedure in answe r ing the ju ry’ s ques tio n and the substance of
that answer . Arti cl e 36.14 of the Code of Criminal Procedure requires the trial court

to “d eliver to the jury . . . a written c har g e distinctly setting forth the law applicable to
the case ” that do es “not expr ess [ ] any o pini on as to the w eight of the evidence .” Id

. art. 36.14

. After deliberations have be gun, Article 36.2 7 permits t he j ury to

commun icat e with the trial court in writing and requires the trial court to “ans wer any such comm unic ati on in writing .” Id. art . 36.27 . “ When the trial c ourt responds subst antively to a question the jury asks during deliberations, tha t communication essentially amounts to a supplemental jury instruction, and the trial court must follo w the same rules for imp artiality and neutralit y that generally govern ju ry i nstructions .”
Lucio v. Stat e , 353 S.W.3d 873, 875 (Tex. Crim. App. 2011 ). But a communicatio n from
the trial court in response to a jury question that merely refers the jury to th e original ch arge is not considered a supplemen tal instruction subject to the dictates applicable to a jury charge

. Earnhart v. Stat e , 582 S.W.2d 444 , 4 49

– 50 (Tex. Crim. Ap p. [Panel Op.] 19 79 ); Daugherty v. State , No. 02

- 13

- 00312

- CR, 2014 WL 1087931, at * 3 (Tex. App.

— Fort Wor th Mar. 20, 2014, pet . ref ’ d) (per c uriam) (mem. op., not designated for publicat ion)

. Rojas a dmits that he did not o bject to the tr ial court ’ s “o ral j ury instructi on ” and th us concede s that he did not preserve his charge

- error compla int. He10 neve rtheles s argues that he was no t requ ired to do so and that the trial court ’ s

co mments shoul d r esult in reversal und er Al ma nza becaus e the trial court ’ s error resulte d in egregious harm. See Almanza v. State , 686 S.W.2d 157, 171 (T ex. Crim. App. 1985) (op. on reh’ g) ( establish ing sta nda rd of review for jury

- charge error and holdi ng that unobjected

- to jury instr u ction sh ould be rev ie wed for eg regious h arm)

. Al terna tively, he argues that he preserved error by ra ising his charge -error complaint in his n ew
- trial m otion. We reject these ar gum ents f or seve ral reasons.
First , a lthough A rtic le 36.27 ’s procedures are mandatory, “ it is incumb ent upon a defendan t to bring th e easily correctable error to the judge ’ s attention by objection
or fo rmal bill of exceptio n or th e acts of the trial court are presu med con sistent with the statute. ” Smith v. Stat e , 513 S.W.2d 823, 829 (Tex. Crim. App. 1974 ). A defendant

must timely object t o preserve a complaint that a trial court ’ s ora l instructions did not compl y with Articl e 36.27 ’ s proc edures

. See Edwards v. Stat e , 558 S .W.2d 452 , 454 (Tex. Crim. App. 1977 ) ; Revell v. State , 885 S.W.2d 206, 211 (Tex. Ap p. —D allas 199 4, pet

. ref’ d); cf. Word v. State , 206 S.W.3d 646, 6 51

– 52 (Tex. Crim. App. 2006) ( explaining that a def endant must preserve error by timely obj ecting to the tr ial court ’ s failure to follow the correct sta tutory procedur es in responding to a jury commun ication ); Green

v. Stat e , 912 S.W.2d 18 9 , 192 (Tex. Cr im. App. 1995 ) (conclu ding that because defendant did not ob ject to trial court ’ s response to jury que stion , he “ present [ ed] nothing for re view ”)

. Not onl y is a defendan t required to timely object to a tr ial11 court ’ s failing to follow Article 36.27 ’ s proced ures t o preserve a com pla in t for our
review , but “ the Al manza standard is inapplicable .” Green , 912 S. W.2d at 193

. Second , regarding the substanc e of the trial court ’ s oral inst ruction , the

comments merely referred the jury to the alr eady

- given c harge and thus “did not [themselves] co nstitute a ‘ cha rge ’ supplemental or otherwise .” Holberg v. S tat e , 38 S.W. 3d 137 , 141 (Tex. Crim. App. 2000 ) (citing Ear nhar t , 582 S.W.2d a t 449

– 50 ) ;

see E ar nhart , 582 S.W.2d a t 4 50 ( “ A r eferral to the original charge is not consider ed an additional instruc tio n. ”). Alm an za ’ s holding relating to jury

- charge errors th us does

not a pply here

. See Ho lberg , 38 S.W.3d at 141

. T

hird , Rojas ’ s raising this argument in his new

- trial moti on did not pr eserve this complaint for our r eview

. To prese rve a complai nt fo r our rev iew, a party must have presented to the trial court a timely request, objecti on, or mot ion sufficiently stating

t he sp ec ific grounds, if not apparent from the context , for the desired ruling. Te x. R.
A pp. P. 33.1(a )(1); M ontelong o v. S tate , 6 23 S. W .3d 819, 822 (Tex. C rim. App. 2021) . A

new

- tria l motion may p rese rve error if an appe llant did not have the opportunity t o

o bject a t trial

. See Lopez v. State , 96 S.W.3d 406, 414 (Tex. App.

— Austin 2002, pet. ref’ d) . Here, however, R ojas could have obj ected but did not

. His new

- trial m otion thus did not preserve error. S ee id. (s tati ng that “[t] he use of a motion for new tria l to
preserve error is

. . . limited to the rare circumstances

. . . when there is no opportu nity to ob ject ”)

.12 We thus conclude that Roja s failed to preserve his Arti cle 36.2 7- based complaint s and tha t Almanza doe s not a pply. 6 We now turn to whether Rojas preserved the second pa rt of his first point

— whether the trial court ’ s oral comments violated Article 3 8.05 ’ s prohibition against improper j udicial comments.
M ost complaints, “whether con stitutional, statutory, or otherw i se, are forfeited by failure to com ply with Ru le 33.1(a).” Mende z v. State , 138 S.W.3d 334, 342 (Tex. Crim. App. 2004 ); see Henderson v. Un it ed Sta te s , 568 U.S. 26 6, 271 , 133 S. C t. 1121,
1126 ( 2013); Henson v. State , 407 S.W.3d 764, 7 67 (Tex. Crim . App. 2 013). But Rule 33.1 “does not apply to rights which are waivable o nly or to absolute systemic requirements, the viola tion of which may stil l be rai se d for the firs t t ime on appeal .”
State v. Du n bar , 297 S.W.3d 777, 780 (Te x. Crim. App. 2009); see P eyronel v. State , 465 S.W.3d 650, 652 (Tex. Crim. App. 2015); Grado v. S tate , 445 S.W.3d 736, 738

– 39 (Tex. Crim. App. 20 14); Reyes v. State , 361 S. W. 3d 222 , 229 (Tex. App. —Fo rt Worth 2012 , pet. re f’ d). A waiv able

- only right can not be for feited

— it “ cannot b e

surren dered by mere inaction ” but is waivable only “ if the waiver is a ffirmatively, plain ly, freely, and intelligently made .” G rado , 445 S.W.3d a t 739. “[A] trial judge has

an ind ependent duty t o imp le ment [a waivable

- only right ] ab sent any request unles s there is an effective express waiver. ” Id

.

6 Even if Al manza did ap ply here , we f ind no eg regious harm because the trial court read the instruction con tained in th e jury ’s verdict form s.13 O ne such waiv able

- only righ t is the right to a trial free of improper judicial

c omments
. Proenza v. Stat e , 541 S.W.3d 786, 797

– 801 (Tex. Crim. App. 2017)

. Article
38.05 forbi ds a trial judge fro m co m menting on t he w eig h t of the evidence or
othe rw ise divu lging t o the jury his op inio n of the case : In ruling upon th e admissibility of evi dence, t h e judge shall n ot discuss or com ment up on th e weight of the same or its bearing in the case, but shall si m ply decide wheth er or n o t it is admissible; nor shall he, a t any s ta ge of the proceedin g previous to t he return of the verdict, make any rema rk calcu l ated to convey to the jury his o pinion of th e case. Tex. Code Crim . Proc. Ann. art. 38.05. Rojas contends tha t the trial c ourt vi o lated Art icle 38.05 by “ redirect [in g] the jury back to paragraph 1 ” in telling the jury that the
trial cour t “ believe d the ans wer” to the jur y’s quest ion was in that parag raph , thus improp erly commenting on the weight of the evidenc e. S ee id.
The righ t t o trial free of improper judicial c o mments under A rticle 38.05 is a

wa ivab le -o nly righ t, so Rojas could forfeit tha t right only th r ough an ex press waiver.
See Proenza , 541 S.W.3d at 797

– 801

. Because the record does not show such a wavie r, Rojas did not fo r feit t his statutory c omplai nt and ma y ur ge it for the fi rst time on appeal. See id. at 801. C. Analysis
R ojas points to the last part of A rticle 38.05 , which provides that a t rial judge should not , “at any s tage of the proceeding previ ous to t he re turn of the verdict , make
any rema rk ca lc ul ate d to convey to the jury his op inion of the case. ” Tex. Code Crim

. P roc. Ann. ar t. 38.05 ; see Brown v. State , 122 S.W.3d 794, 798 & n.8 (Tex. Crim. A p p.14 2 00 3 ) ( explaining that “a trial judg e must
. . . ref rain f rom mak ing any rema rk calculated to conv ey to the jury his opin i on of the case ” because jurors may give
spe cial and peculi ar weight to th e trial court ’ s langua ge and con duct ). By creating “a du t y on the trial court
. . . to refrain sua s

pont e from a ce rtai n kind of act ion,” Proenza , 541 S. W.3d a t 7 98 , A rt icl e 38. 0 5 provides the defendant wit h “ the right to be tried in
a proce eding devoid of im proper judicial commentary ,” id. at 801

. A “ trial court improperly co mments on the weight of the evid en ce if it make s a

sta tement that implies approv a l of the Stat e’ s ar gumen t, indicates disbelief in the defense ’ s position, or diminishes the credibility of the defense ’ s approach to the case.”
Simon v. State , 203 S.W.3d 5 8 1, 590 (Tex. App.

— Houston [14th Di st.] 2006, no p e t.).
But not “ every unscripted j u dicial co mmen t in f act d i srupts the proper functioning of the judici al system. ” Proe nza , 541 S.W. 3d at 800

. If a n appellant chall enges a trial

court ’ s comment that is “error le ss or ins ignificant in the cont e xt of a par ticu l ar tri al, ”
then that challenge ca n be “den ied on its meri ts or else dec lared harm less. ” Id. Rojas complains that the tri al court ’ s comm ent s di recting the jury to paragraph
1 “ left the impression the [trial] court wa nted them to reach a una ni mous find ing o f guil t” on p aragraph 1 ( the continuous

- se xual

- abuse ch ar g e) instead of considering the
lesser

- in cluded offenses charged in paragraphs 2 , 3, and 4. Rojas ar gues that by making these comments , the trial court “ specifically direc te d the jury to the most

cru cial i s sue in the case ” and “ signaled the c ourt ’ s approv al of the [S]tate ’ s arg ument and diminished tha t of the defense. ” We dis agree.15 The trial court pointed the jury to the verdict forms, read a paragraph from applica t ion paragraph 1 in the v erdict forms , and t hen r eferred back to that paragraph

. In doing so, the trial court did not imply approval o f the State ’ s a rgument, indica te disbelie f in Rojas ’s pos ition, or dim inis h the credibility of Ro jas ’s approach to the

case . It merely pointed th e jury to the ins tru ction in the verdict form relevant t o its
qu estion s and read it to the jury

. We thus h old that t he trial c ou rt’s commen ts were errorless under Article 38.05

. See id

. B ut even if it was error, it was insignificant when conside red in the con text of the entir e trial because, again, the tr ial court merely read
the relevant jury instruction f rom the verdic t form

. See id

. Ac cordingly, we overrule Rojas ’ s first point

. I II
. Ro jas ’ s Evidentiary Complaints
Ro jas ’ s remainin g points chal lenge the trial court ’ s evident iar y rulings reg arding

t he admission of Dul a’ s expert testimony ( se cond and third points ), extran eous
offense evidence (fourth po int) , and recordings of Roja s’ s jail house te lephone calls (f

ifth point ). We review a trial court ’ s evidentiary ruling s for an a buse of disc reti on . Johnson v. State , 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). We will not rev ers e an evid entiary ruling unless it is outside the zone of reasonab le disagreement. Tillman v. State , 354 S.W.3d 4 25, 435 (Tex. Crim. App. 2011)

. If the ruling is correc t und er a ny applicab le theory of law, we will affirm it regardl ess o f t he trial court ’ s r eason for the ruling. See Johnson , 490 S.W.3d at 908

.16 We address R oj as’ s fourth point first because doing so a id s in our disp osition of th e appeal

. We will then address his se cond and third points together and will conclude by address ing his fi fth point.
A. The E xtran eous -O ffense Evidence
Ro jas ’ s fourth point challenges th e trial court ’ s admission of e xtraneous

- offe nse

e vidence under Code of Criminal P rocedur e Ar ticle 38.37 reg ardi ng his sexually abusing Claire

. Rojas argues that the trial court ab used its direction by overruling his Rule 403 objection to Cla ire ’ s testimony and by allowing her to tes tify because the danger of unf air prejudice substantially out w ei ghed th at e vi dence ’ s pro bative value

. 1
. App licable law
R

ule 4 04(b) (1) disall ow s evi d ence of crimes, wrongs, o r oth er act s s ole l y to prove a perso n’ s ch aract er t o show that the perso n a cted in conformity with that characte r on a particula r occasion

. 7 Te x. R . Evi d. 404( b) (1). Such extraneous

- offense evidence is statut orily admissibl e, howe v er, in certain types of child

- sex
- abuse cases , including contin uous
- sexual

- abuse cases . See Tex. Code Crim. Pr oc. Ann. art. 38.37 , § 2. In such cases , “[n] otwithsta ndi n g R ules 404 and 405 ,” evidenc e that a defendant
has committ ed a s eparate such se xual offense against a chil d may be admitted “for any

7 But t his evi dence may be adm issible fo r o ther p urpo s es , “ such as p roving moti ve, op port unity, int ent, p r eparation, pl a n, knowledge, i de n tity, abs ence of mist ak e, or l ac k of accident .” Tex. R . Evi d. 404(b) (2).17 bear ing the evide nce has on relevan t matt e rs , includin g the character o f t he d efendant and acts performed in co nf ormity w i th the character of the defen dant. ” Id. § 2 (b)

. But e ven if extraneous

- offense evide nce is relevant and admissib le under Article 38.37, that e vidence c an nevertheless be excluded under Rule 403 if the da nger of un fair pr eju d ice substan tially out w eig h s t he evi dence ’ s pro b ative value

. See Wells v. State , 558 S.W.3d 6 61, 66 9 (Tex. App.

— Fort Worth 2017, pet. ref ’ d); Martin v. Stat e , 176 S.W.3d 887 , 895 (Tex. App. —F ort Worth 2005, no pet. ) ; see also Tex. R. Evid.
403. Recognizing that trial court s are best po si tioned to gauge the impact of t he evidence, we measure the trial court ’ s ruling against the R ule 403 balancing criteria: (1) the inherent probative force of the evidence along with (2) the State ’ s need for the

ev idence agains t (3) any tendency of the evi de nce t o suggest a decision on an improper basis, (4) any tendency of the evidenc e to confuse or distract the jury from the main issues, (5) any tendency o f the evidence to be given undue weight by a jury
that has not been equi pped to evaluate the probativ e force of the evi dence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence alrea dy admitted. See Gigliobianco v. State , 210 S.W.3d 637, 641

– 42 (Tex. Crim. App 2006)

. 2. Analysis
W hen the State offered C laire ’s testimony at trial , R ojas argued that the trial

court was required to hold a hearing to determine whether that evidence satisfied
Ar ticle 38.37 ’s requirements

. See Tex. Code C rim. Pr oc. Ann. art. 3 8.37

. The State18 read to the tria l court its extraneous

- offense n otice regarding Rojas ’s prior actions toward C lair e, inc luding hi s grooming her, ma st urbating in fr ont h er , touching he r i nappropriately, and sexually assaul ting her in 2009. Roja s objected th at this testimony

was more prejudicial than probativ e, and the trial cou rt overruled t hat objectio n. 8
C laire, who was raised by her mothe r a n d s tep father, we nt on to testify that she did not mee t Rojas until sh e was ten y ears old. When she was about 12 yea r s old, Rojas began s pending time with her regular l y, and he wou ld take her to a lake, where
the y would si t alone in his tr uck. On fiv e or si x occasions , w hile they were s itting there , Rojas use d the reflecti ve side of a comp act disc to look u p Cla ir e’s sk irt and

mastu rbate

. Rojas t wice tried to touch Cla ire ’s th igh and breast s , but she told him t o stop . H e apologized but c ontinued masturbating

. At Claire ’ s insis tenc e, Roj as stopp ed taking her to the lake. He apologized for his behavior and pr om ised th at h e would never do it again. At so me point, Claire

wr ote a lett er to he r mother and stepfath er telling them about Rojas ’ s beh av i or. They

8 Rojas complains that the tria l court “made no meaningful [Rule] 403 w eighi n g of the evidence as required by the law. ” A trial court must conduc t a balancing te st upon a Rule 40 3 objection. Sant el

lan v. Stat e , 939 S. W.2d 155 , 173 (Tex. Crim. App. 1997 ) Bu t a trial court is not required to perform t he balancing tes t on the record, and when the record is silent, we presume that the trial court perfor med the appropriate balancing te st before admitti ng the evidenc e. James v. Stat e , 623 S.W.3d 533 , 551 (Tex. App.

— Fort Worth 2021, no pet. ) (c iting William s v. Stat e , 958 S.W.2d 186 , 195

– 96 (Tex. Crim. App. 1997 ) ; Jackson v. Stat e , 424 S.W.3d 140, 155 (Tex. App.

— Texarkana 2014 , pet. ref’d ) ).19 qu esti oned h er in Rojas ’ s presenc e. She denied that Rojas ha d done anything to h er. Rojas stopped b ehaving i n approp riatel y. W hen Cl aire w as about 15 or 16 years old , she dropped out of school and moved in with Roj as , Anne, and An ne ’s mothe r. Claire became pregnant in January
2009. 9 In April 2009, t hen

- 16

- yea r- old Cla ir e was showering and loo ked up to see Rojas p eerin g over t he shower curtain at her. 10 After she towel ed off a nd d ressed, Rojas p ushe d her onto a b ed , r emoved her pan ts, un zipped h is pan ts, and ra ped her. After wards, Cla ire dressed and ran to her mother ’ s house. S he di d not imme diately tell
her mother what had happ ened because she was ashamed

. Bu t wh en Clai re lea r ned
that she had a sexually transmitted di sease, she was forced to rev eal what h a d happe ned , and she a nd her mother called the p olice

. “R ule 403 f avors the admission of relevant evidence and ca rries a presu mption that relevant evidence will be more probative than prejudicia l.” Shuffi eld v. State , 189 S. W.3d 782, 787 (Tex. Cri m. App. 2006). It is Rojas ’s burden to overcome this presumption and to demon strate that the probative va lue of the eviden ce is substan tially outweighed by the danger of unfair prejudice or of misleading the jury.
See Wells , 558 S.W. 3d at 66 9. We conclude t ha t Ro jas failed to overcome this presumption.

9 Cla ire ’ s ch ild wa s born in July 2009. O n c r oss
- examinat ion , Rojas ’ s attorney clari f ied with Claire that R ojas is not the child ’ s fath er.

10 This was n’t t he first time Rojas had spied on Cl aire in the shower.20 First and fore most, Anne ’ s cr edi bility was vital to the Stat e’ s case. Roja s had
continu all y abused her for years, but s he had de lay e d making an outcry. Rojas atta cked
A nne ’s failing to rep ort the abuse earlier , the veracity of her journa l entries, and her failing to def end herself

— at the age of 12

— by taking the kni fe from Rojas whi le he

was sexually abusing her at knifepoi nt . H is wife, sister, and one of his daughters testified th at Rojas had ne ve r sexua lly abuse d them or their children

. And although
th e re moteness of th e extrane ous
- offense evidence significantly lessened its pro bative valu e, see Newton v. Stat e , 301 S.W.3d 315 , 320 (Tex. App.

— Waco 2009, pet. ref’d ) , f

acto rs one (the ev idence ’ s in h erent proba tive force) and two ( the State ’ s need for th e evidence) still weigh ed in favor of admission , see id. (h olding that wh ile ext raneous

offen se evidence was remo te , it was n evertheless pro bative and that the State ’s need for such evidence was “ consi dera ble ” wh en there were no e yewitnesses a nd no phy sical evidence availa ble to corroborate child

- sex
- abuse complainant ’s testimony).
An d , as Rojas a dmits, t he S tate ’s presentation of Claire ’ s testimony was n ot repetitive nor did it take up an inordinate am oun t of time during th e thre e- and -a- half -d ay, guilt

– innoc ence p ortion of t he trial , so factor six (the li kelihood that the evidence ’ s p resentation w ill take an in ordina te amou nt of tim e or merely r epea t evidence already admitted) also weigh s in favor of ad missi on . See Wells , 558 S.W. 3d at 669. Th e remaining third , fourth, and fifth factors also do not show that the probative value of Clai re ’s testimon y about Rojas ’s prior sexual abuse was

s ubstantially ou tweighed by its prejudicial effect or by some tendenc y to misl ead the21 jury. A lthough Claire ’ s testimony about R ojas ’s past sexual behavior with her was prejudicial , it was not unfairly so. In deed, its prejudicial nature arises from t h e fact that it was esp ecially probative of R oja s’ s propensity to prey on si mi larly a ged fema le fami ly members

. See i d. We see no indi cation that C laire ’s testimony confused or distracted the jury from the main iss ues in the case, suggested a decision on a n improp er ba sis, or was given undue weight because the jury was ill equippe d to eval uate its probat ive force. See id

. The trial cour t’ s admission of C laire ’s testimony regarding Rojas ’s past sexual abuse was no t an abuse of its discretion. We overrule Roj as ’ s f o urth po int.
B. The Forensic I nterviewer ’s Expert Testimo ny Rojas ’ s s econd a nd third point s challenge the tr ial court ’ s ad mis sion of Dula ’ s expert testimony. In his se c ond point , Rojas ar gue s that the tri a l cour t abus ed its di s cretion by allowing Du la —a f orensic intervi ewer who had interviewed Claire in 2009 and had reviewe d video s of Detective Parker ’ s interv ie ws with C laire an d Anne

— to give expert testim ony about Ann e’ s and Cla ire ’ s tru thfulness and vera c ity

. Rojas a rgues in his third point t hat Du la ’ s testimony about the interview s’ contents

was inadmissible “ backdoo r hea rsay ” and that the trial co urt thus abused i ts discretion by allowing that testimony. Because both of these poin ts in volve Dula ’ s test i mony, we will d iscuss them together

. But we f irst address whether R ojas ha s preserved his compla ints for our review.22 1. E rror preserva ti

on The State con tends that R ojas failed to preserve his truth

- and

- veracity

- opinion s complaint because his appellate com pla int on thi s point does n ot comport with h is
trial objections

. See Lovill v. State , 319 S.W.3d 687, 691

– 92 (Tex. Crim. A pp. 2009) ( “A

com plaint will not be preserved if the legal basis of the complain t rai sed on appeal varies from the complaint made at t rial.”); Pena v State , 285 S.W.3d 459 , 464 ( Tex. Crim. App. 2009) (“Whether a party ’ s part icular complain t is preserved d e pends on wh ether the complaint on appeal comports with the complaint made at tri al.”)

. Here, o utside the jury ’ s presence, th e State p roffered Dula as an expe rt on child

- abuse dy namics

. Rojas agreed tha t she was a qualified ex pert in this ar ea but stated , “ I w ill make an o bject i o n when the time com es if she offer s impres s ions or any information g ained dur ing any of those forensic intervi ews . ” Rojas a lso argued that
Dula ’ s testimon y regar ding the in ter vie ws ’ content s wo uld be backdoor h earsay and asked the trial court to limit Dula ’ s testimony so “ that impermissibl e hearsay cannot be brought out in front of the ju ry . ” The trial court respo nded , I

-- I tend to agree with that, but I

-- I ’ ll eve n make this eas ier for you. I ’ ll limit the scop e of this witness t o her opinion, but I won ’ t let her interject f act s of opinions that she didn ’ t know that

-- that she wasn ’ t there . I ’ ll let her have a

-- she can

-- she can make an opinion as to whether an assault occurre d

. She can make h er opinion as to truthfulness, ver acity of whoever she interviewed or watched . S he can go into her training and schooling. The ultimate issue of

-- of what, when, and wh ere if she ’ s
-- didn ’ t

-- if she wasn ’ t on

- s ite or didn ’ t do a forensi c interview, I

-- I ’ m probab ly no t going to let her testify as to what happened.

. . . .23 Well, sh e ’ s a
-- she can base her opinion on whatever she based her opin ion on. She watched video s or read rep orts. I mean, that ’ s part of he r deal, but she ’ s not g oing to be able t o repeat it verba tim. She ca n

-- you can ask her what she based her opinion on a nd how she got her opinion. You can cross

- examine her about it. And when

-- she can go into outcry, if th ere was an outcry. I don ’ t

-- I don ’ t k now what this
w

itness is going t o say. She can go and watch

-- she wa tched it on a videotape, but

-- but that ’ s
- - s he can say that ’ s what she based her opinion on as far as, you k now, factually specific. Stuff, if she ’ s not there, she ’ s not there. But she can still base an expert opini on on

-- with out be ing there. She can a ctually base an

-- she can

-- she can have an expert opinion as to credibility, as to truth, veracity . You get to cross

- examine her abo ut it. It ’ s n ot bolstering when she ’ s an exp ert opin ion in the fiel d

. [Emphases ad de d.] To preserve a complaint for our r eview, a party must have prese nte d to the trial court a timely request, objection, or motion suff iciently stating the specific grounds, if not appar ent from the context, for the d esired rul ing. Tex. R. Ap p. P. 33.1(a) (1); M ontelongo , 623 S.W.3d at 822

. “Th e two main purposes of requiring a specific objection are to in form the trial judge of the basis of the objection so that he has an
opp ortunity to r ule on it and to allow opp osing cou nsel t o remedy t he er ro r.” Clark v.
Stat e , 365 S.W.3d 333, 339 (Tex. Crim . App. 2012); Resendez v. State , 306 S.W.3d 308, 312 (Tex. Crim . App. 2009 ). Although an objection must be specific, p reservation does not require “ magic language ” but turns only on whether the trial cour t understood the ba sis of the objectio n. Vasquez v. State , 483 S.W.3d 550, 554 (Tex. Crim. App. 2016); St ate v. Rosseau , 396 S.W.3d 550, 555 (Tex. Crim. App. 2013). Further, the Texas Cou rt of Crimina l Appeals has cautioned in terme diate appe llate

courts ag ai nst engaging in a “hyper

- technical” parsin g o f an objection ’ s specificity in24 determining preservation. Vasque z , 483 S.W.3d at 554; Everitt v. State , 407 S.W.3d 259,
263 (Tex. Crim. App. 2013)

. Given the se principles an d the conte xt of Roja s objection , we c onclude that the parties and the trial court under stood that the basis for Rojas ’ s “ impressions ” object ion en compassed Dula ’ s opinions about Anne ’ s and Claire ’ s truth and veracity , and that the tria l court overruled that obj ecti o n . We thus conclude that be cause Rojas ’ s app ellate complaint co mports with hi s trial

- court complaint , he has preserve d this compla int

— a s well as his ba ck door

- hearsay complaint

— for our review

. See Clark , 365 S.W.3 d at 339; Res endez , 306 S.W.3d at 313; Pena , 285 S.W.3 d at 464.
2
. Du la ’ s testimony
Dula , who was the State ’ s final witne ss, is the current Director of Program Services at Al liance for Children an d has testified as a chi ld

- abuse

- d yn a mics expert many times over the past 20 years

. She explained that c hi l dren c om monly delay discl os in g ab us e and commonly deny abuse when directly asked

. Dula testified
ge nerally about how perpetrators engage in grooming behavior , manipulati on, and blackmail

. She al so testified ab out coping m e ch an ism s c hildren use to de al w ith ch ronic ab use . Dul a test ified that the forensic

- interview pr ocess is desi gned to re duce the ris k of suggestibility or coaching by facilitating a free na rrative by th e child in which t he child has the ab ility to des cri be se n sory and p eri pheral d et ails a nd to co rrect the
interviewer. Dul a explained “ suggestibil ity” as “ the i de a t hat if some body says25 somet hing to a child that didn ’ t take place, that children aren ’ t strong enough o r don ’ t have th e ability to sa y , ‘ N o , t hat ’ s not tru e. This is what happened. ’ ” She further explained that “ coaching ” can be e ither “ a child b eing told to say s omething that did not happe n ” or a perpetrator “ t elling a child no t to say something

. ”
Dula t estified that s he ha d conducted Cl a ire ’ s f orensi c inter view in 2009 and had watc hed videos of Detective Parker ’ s intervi ews w ith Anne an d C laire

. Altho ugh
Detectiv e Parke r ’ s versio n of a f orensic interview with Anne w as not “ t o the le vel that [Du la ] a nd her employe es would condu ct it , ” Dula s aw no “ r ed flags o r any signs of coaching ” in Detective Pa rke r ’ s in terview of Anne. According to Dula, Anne gave sensory an d p eripheral detail s an d corr ected De tective Pa rker. Dula des cribed An ne as being “ very n arrative at d i fferent portions of the interview ” and as being te arful and crying at oth er portions. Dula ’ s only criticism of the i nterview was tha t she thought
that “ m or e info rmation

. . . could have been obtained , but it was now he re near concernin g or rising to sugg estibility or coaching ” on Detective P arker ’ s part. Dula ha d similar opin ion s a bout De tective Parker ’ s interview with Claire. There were no signs of c oa ch ing b y Detecti ve Parker or of suggest ib ility regarding t he acts of abuse C laire had rep orte d. Like Anne, Claire had sensor y an d peripheral d etails and

co rrected D ete ctive Parke r. From that interview , Dula learn ed that C l air e had de ni ed the abuse w hen she

was co nfronted by her parents and R oj as , but the den ial didn ’ t su rprise Dula because Rojas was there when Claire was question ed

. Dula was al s o unsu rprised to learn that26 Claire had decided to go live with Rojas after having be en se xually abused by him

. D ula was s imilarly not surprised th at Anne had d enied a ny abuse when CPS had interviewed her a t the time of its investiga tion into Clai re’ s alleg ation s. Based on her review of bo th in terview s, Dula c on cluded that th ere were

“ similar ities between the sexual abuse bot h girls suffere d” because th ey reported

s imilar acts of abuse, manipulation , and grooming by Rojas

. At the end of her testimony , th e State a sked Dula w hether it was her j ob t o “sho w up and testify as a lie detector .” She respo nd e d, “No ,” and sta ted that her job was to assist in investigations as a “specialized resource for our in vestigators wh o make the decisions .” On cross

examin ation, Du l a c onfirmed that sh e di d not know wh e ther An ne ’ s and C laire ’ s alleg at ions were true an d conceded that she had “ no wa y of knowing ” whether they

were true. She also testified that sh e could not te l l the dif ference between a true outcry and a false out cry. On re

- direct, Dul a testified that her r eport fr om Cla ire ’ s 2009 fore ns ic interview s how e d that Dul a had circled “ consistent with that of abuse ” in the interview

- summary sect ion of the i nterview form

. 3. Truth

- and

- veracity opinions
E xpert testimony does not ass ist the jury and is thus inad missi ble if it
constitutes “ a direct opinion on the trut hfulness” of a child co mplainant ’ s al legations.
Yount v. S tate , 872 S.W.2d 706, 708 (Tex. Crim. App. 1993)

. The State t herefore may

not elicit expert testimon y that a part icular child is telling t he truth or tha t child complai na nts as a class ar e worthy of belief. Id. at 711

– 12 . No r may an expert offer a27 direct opinion on the truthfulness of a child complainant ’ s allegations. Schutz v. State , 957 S.W.2d 52, 59 (Tex. Crim. A pp. 1997).
An expert can, however , testify about c oaching and m ani pulation in gene ral and whe ther a child exhibited s igns o f coac hing or manipula tion

. See id. at 73 ; Ca ntu v. Stat e , 366 S.W.3d 771 , 777 (Tex. App.

— Amarillo 2012, no pet. ); see a lso Gonzales v. State , No s . 0 3- 13

- 00333

- CR, 03

- 13

- 00334

- CR, 2015 WL 3691180 , at *4 (Tex. App.

— Aust in June 11, 2015, n o pet.) (me m. o p., not designated for publication) ; Johnson v.
State , No. 02

- 13

- 00482

- CR, 2015 WL 1792971, at *3 (Tex. App.

— Fort Worth Apr. 16, 2015, pe t. ref ’ d) (mem. op., not designa te d for publication) . A n expert may al so testify abou t behav ioral charac te ristics t ha t c hild

- abuse victims commonly ex hibit and opine whether a child ’ s behavi or is consistent with those characteristics

. See Youn t , 872 S.W.2d at 708

– 09; Cohn v. Stat e , 849 S.W .2d 817, 818 (Tex. Crim. Ap p. 1993 ) ; Shaw v. Stat e , 329 S.W.3d 64 5 , 651 (Tex. Ap p.

— Houston [14th Di st.] 2010, pe t. ref’d).
H ere, Roja s complains that Dula ’ s opinion s cro ssed the line into i mpermi ssible
truth -a nd

- vera c ity o pinions and that the tr ial court abused its discretion by allowin g Dula t o testify directly and indirectly about An ne ’ s and C laire ’s truthfulness. T he State

con cedes that the trial court ’ s ruling that Dula could testify reg ar ding a victim ’ s

ve racity or t ru thfulness is co ntrary to the law b ut maintains that Dula ’ s opi nion s did

n ot c ross t he line into im proper t ruth

- an d- veracity opinions

. We mostly ag ree with the
State

.28 The trial court did no t abuse its discretion by allowing D ula to testi fy regarding red fla gs, behavioral characteristics, ma n ipulation , c oaching, the gir ls ’ de scribing

sensor y an d periphera l detail s, and the consistency between the g irls’ interview s because such opinions were not direct comment s u po n the truth of Anne ’ s and
Claire ’ s alleg ations

. See Hernandez v. Stat e , No s . 02

- 16

- 00373

- CR, 02

- 16

- 00374

- CR, 2018 WL 3764066 , at *9 (Tex. App. —Fort Worth Aug. 9, 20 18, pet. ref ’d) ( mem. op.,

n ot designate d for publication ). T o the extent that the trial court abused its discretion by all ow ing Dula to t estify that she had circled “consi stent with that of abuse ” on the interview form f rom he r 2009 inter view with Clair e, see Salinas v. S tate , 166 S .W.3d 368, 371 (T e x. App .—Fort Worth 2005, pet. ref ’ d) (holding that expert ’ s testimony diagnos in g sexual abus e based solely on the complaining witness ’ s self

- reported history was an improper atte mp t to bolster the complaining w itness ’ s credibil ity and a d irect comment on her tr uthfulness) , we conclude that such error d id not affect
R ojas ’ s substant ia l rights , s ee Tex. R. App. P. 44.2 (b). That is, we are fairly assured from examining the r ecord as a whole that th e error did no t i nfluence the jury or that
it had but a s light effect be cause the jury had already heard Cla ire ’ s testimony regarding Ro jas ’ s sexually assa ulting her

. See Macedo v. State , 6 29 S.W.3d 237, 240 (Tex. Crim. App. 2021)

. We t hus o verrule Rojas ’s second point

. We next address R ojas’ s third po int

— whether the trial cou rt abused its d iscretion by overru ling his objections to Dula ’ s testim ony as back do or hearsay.29 4. Backdoor hearsay Hearsay is a statement, other than one made by t he de clarant while t estifying at

a tr ial or hearing, o ffered in to evidence to prov e the trut h of the matter asserted

. Tex.
R . E vid. 801( d) . Hearsay is inadmissibl e unless ma de admissible b y statu te or rule.
T ex. R. Ev id

. 802. The hearsay rule may not be c ircum vented by infer ence or by el icit ing the

s ubstance of the stat ement in indirec t form

. See Schaffer v. State , 777 S.W.2d 111, 113

– 14 (Tex. Crim. App. 1989). E ve n if the out

- of -c ou rt s tatement itself is not introduced, the hearsay rule may apply if the testimon y all ows the jury to ascertain the pu rport of
the stat ement; this type of evidence is known as “backdoor hearsay.” Id. Whether testimony constitutes backdoo r hear say “tu rns on how strongly the content o f the

out

- of

- court statement can be inferre d fro m the context.” Head v. State , 4 S.W.3d 258,
261 & n.2 (Tex. Crim. App. 1999). The court must decide “ whether the strength of
the in ference produces an ‘ inescapab le conclusio n’ that the evidence is be ing offe red to prove the substance of an out

- of

- court sta temen t. ” Id. at 2 62 ( quoting Sch af fer , 777 S.W.2d a t 114 ) . Stated differently, backdoor h earsay exists when “‘ the State ’ s sole
intent in pursuing [a] line of que stioning is to convey to the jury ’ the content s of the

out

- of

- court statements.” Id. ( quot in g Schaffer , 7 77 S.W.2d at 11 4). Here, Dula did not re veal the substance of Anne ’ s and Cla ire’ s in terviews.
R ojas identifies as back door hearsay Dula ’ s testim ony tha t Dul a observ ed no red flags or any signs of c oaching or suggestibility during the in tervi ew s, that Anne and Claire30 gav e s ensory and periph eral d etails, that Anne ’s de meanor was “narrative,” and that
An ne was tearful and appeared to be crying in her interv iew

. Ro jas al so points to
D ula ’ s testimony tha t the sexual abuse and grooming suffered by th e girls was s imilar.
This te stimony merely char a cteri ze d the victim s’ respo n ses without providing the substance of those response s . The trial court thus cou ld have reasonably co ncluded
that Dula ’s testimony, “w hen taken in context , did not lead to any in escapable
concl usions as to th e substance of the out

- of

- court statements
. ” Id

. ; see Consuelo v. Stat e , No. 05

- 07

- 00848

- CR, 2008 WL 3578594 at *6 (Tex. App.

— Dallas Aug . 15, 2008, p et. ref’d ) ( not desi gnated for pu blication) (concluding that trial court did not abuse i ts discretion b y admi tting, over t he defenda nt ’s hearsay objection , a detective ’s

test imony confirm in g that complainant “h ad given detailed responses to qu estions about the assault in her forensic inte rview ”)

. Dula also testified that she ha d learned from a review of Cl a ir e’s interview wit h
Detectiv e Parker that Clai re had denied the abuse when questioned by her parents in
Ro jas ’s presence. Al though this tes timony reveal ed the contents of that interview , Cl aire herself had already testified t hat when her pa rents questione d her in Rojas ’s
pr esence, sh e had denied the a buse

. It thus cannot be said that the State ’ s “sole
inte nt” in asking Dula for her opinion on Claire ’s den ial was to convey to the jury the

content s of that out

- of

- court statement. See Head , 4 S. W.3d at 262. An d because
Dula ’ s te stimony wa s cumulative of C l aire ’s testimony, any error in allowing Dula to give her opinion on that fact was harmless. S ee Matz v. St ate , 21 S.W.3d 911, 912

–31 13 (Tex. App.

— Fort Worth 2000, pet. ref ’ d) (op. on remand)

. We o verrule Rojas ’s

t hird point.
C. Th e Recordin gs of Rojas’s J ail house Telephone Calls In Rojas ’ s fi fth point , he conten ds th at the trial court abused its di scretion by

a dmitting over his hearsay object ion record ing s of telephone calls that he made from
the Grand P r airie J ai l. R ojas complains that the testimony of the sponsoring witness ( Detective Parke r) was inade quate to admit the re cord ings under t he bu siness

- record s

ex ception to the hearsay rule

. 1. Applica ble l a

w As note d, h earsay is i na dmissible unless made admissible b y stat u te o r rule. Tex. R. Evid

. 802. One such rule is Rule 803(6), the so

- called business

- records exceptio n, which allows the admission o f “[a] record of an act , event , condition , op inion , o r diagnos is” if (A ) the record w as made at or nea r the time by

— or from i nform ation transmitt ed by

— someone with knowledge ; (B) the re cord was kept in the course of a regular ly conducted business activ ity; (C) making t he record was a regular practice of th at activity; ( D) all these co nd itions are shown by the testimony of the cust odian or another q ualified witness

. . . ; and (E) the opponent fails to demonstrate that the source of information or the method or circumsta nces of preparation indicate a l ack of trustworthin ess. Tex. R. E vi d. 803(6).32 The t erm “b usiness ” under th is ru le “ includes every ki nd of regular organize d activity wh ether conducted for profit or not. ” Tex. R. E vi d. 803(6) (E)

. But “[w]he n a b usiness rece i ves information from a person wh o is outside the busine ss and who has no business dut y to report or to r eport accurately, those stat ements are not covere d by the business reco rds exception

. ” Garcia v. State , 126 S.W.3d 921, 926 (Tex. Crim. App

. 2004)

. Suc h statements must indep endently q ualify for admissibilit y , such as an

a dmission by a p ar ty opponent. Id. at 926

– 27; see Tex. R. Evid. 801 (e) (2)

. Either a records custodian or a nother qualif ied witness can lay the predicate for
th e adm ission of evidence und e r Rule 8 03(6). Bahena v . State , 634 S.W.3d 923,
929 (Te x. Cr im. App. 2 021). “ A custod ia n of records can be a qualified witness. But a qualified witness n eed not be a custodian of records. ” Id.
2. A n

alysis Here, D e tective Parker with the Grand Prairie Poli c e Department testified about the system

— which is ov erse en by Securus T ech n ologie s , an o u tside
company

— th at the Grand Pr air ie Po lice D epar t ment uses to re cord and screen outgoi ng inmate tel ephone calls

. Detective Park er screens th ese calls as p art of his

wo rk and investigations. It is a r egular activity o f the departmen t to record these c alls. Accordi ng to Detective Parker, incoming inmates are ass igned a u ni qu e PIN

c ode to use for eac h call

. Bef ore an in mate is al lowed to make a call, he is req uired to read a prompt so that the syste m can create a vo ice print based o n the prompt
.33 When an inmate want s to make a call , he must e nter h is uniqu e PIN code before dialin g the telephone num ber. Duri ng the call, t he in mate ’ s voice is continually checked a gainst the v o ice prin t connected wit h the PIN code u sed

. The calls ar e

con temporaneously record ed

. When a call ends , th e recording is aut omatically uplo aded to Securu s ’ s se rv ers ,
to which the Grand Prairie Police Department has access . Detective Par ker can search by bo oki ng number, name, date of birt h, an d tim e period to find if calls we re made and by whom

. D etectiv e Parker was th us a ble to loc ate reco rdin gs of Ro jas ’ s telephone calls

. He testified that he had pull ed some of thos e recordings fr om the

server and p ut copi es of them on to two d iscs

. Those t wo discs were admitted into evidence and played for the jury while a t r anslator t ranslated the conversations from Spani sh to En gli sh.
The T exas Court of C riminal Appeals r ecent ly determine d that similar
testim on y fro m a n o ffic er with the Harris County Sh er iff ’ s Office sati sfied Rule 803(6) ’ s requirements for ad mission of inma te call s under the business

- records

ex ceptio n. S ee id. at 925 , 92 8

– 2 9 ; see also Bah ena v. State , 6 04 S.W.3d 527, 538

– 39, 541

– 43 (Tex. App.

— H ousto n [14 t h Dist. ] 2020) (Hassan, J. , diss enting ) ( explaining that
Harr is County uses the Secur us s y ste m to record and store inmate telephone calls ) , aff ’ d

, 634 S. W. 3d at 929. We thus conclude that Detective Parke r ’ s testimony sat is fied Rule 803(6) ’ s re qu irem e nts. S ee Bahe na , 634 S.W.3d at 92 8

– 29

.34 Rojas also argues that the recordings’ conten ts were not covered by the business

- records exception because he and his fa mily members had no business duty
to Securus. See Garcia , 1 26 S.W.3d at 926. Rojas ’ s s t ate ments in the phone call s in which he admitted to having a rel atio nship with Anne and that Anne ’ s journal s contained evidence against him were non

- hearsay statements b y a party opponent and

we re thus admissibl e . See Te x. R. Ev id. 801 (e) (2)(A) ; Acosta v. Sta te , No s . 02 -13- 00470

- CR, 02

- 13

- 00471

- CR, 2015 WL 5893693 , at *5 (Tex. App.

— Fort Worth Oct. 8, 2015, no pet. ) (mem. op., not designated for publica tion). As for Ro jas ’s fam ily members ’

statement s, th ose statem ents were not h ea rsay because they were not admi tted for the

tru th of th e matter s asser ted bu t to place Rojas ’ s admissible responses into context for the jury. See Tex. R. E vid. 801(d)(2) ; Acosta , 2015 WL 5893693 , at *5

. In sum, we con clude that the trial court did not a buse it s discretion by overruling Rojas ’ s obje c tion s and admi tting into eviden ce th e recordings o f his jailhouse telephone calls . We overrule Rojas ’ s fi fth point.
IV. Conclusion Having overruled Roj as ’ s five points, we affirm the trial cour t’ s jud gments.35 /s/ Elizabeth Kerr E lizabeth Kerr J us ti ce Do No t P ubl ish Tex. R. App. P. 47.2(b) Delivered : June 22, 2023