Affirmed and Opinion filed May 7, 2013.

In The

Fourteenth Court of Appeals

NO. 14-11-01015-CR

TIMOTHY GARRETT LINNEY, Appellant,

V.

THE STATE OF TEXAS, Appellee.

On Appeal from the 179th District Court

Harris County

Trial Court Cause No. 1312489

O P I N I O N

A jury convicted appellant Timothy Garrett Linney of indecency with a child 

and assessed his punishment at eight years’ confinement in the Texas Department 

of Criminal Justice, Institutional Division, probated for eight years. In five issues, 

Linney appeals. We affirm.
2

I

Linney, the appellant, is complainant Jane’s1paternal uncle. Throughout her 

young life, Jane and her sister, Kelly, lived with their parents, Jim and Cindy. 

Linney lived nearby with his wife, Valerie, and their young son, Steve. Jim and 

Linney’s parents (Jane’s grandparents), David and Donna, also lived nearby. Jane

had good relationships with her extended family members and saw them relatively 

often.

In 2005, Jane began cutting herself to cope with stress and low self-esteem 

that resulted from being bullied at school. When her parents discovered Jane’s selfdestructive behavior, they took her to a counselor named Mary Maurer, who 

treated Jane for about a year. During that time, Maurer helped Jane improve her 

coping skills. By the time Jane stopped seeing Maurer in 2006, Jane had stopped 

cutting herself, and she was no longer being bullied at school.

During the summer of 2008, Jane and her family frequently went to David

and Donna’s house to swim and spend time together. On June 21, when Jane was 

fourteen years old, she went to Linney’s house to babysit Steve. Because Linney

and Valerie knew they were going to be out late, they planned for Jane to spend the 

night at their house, and she was already asleep when they got home.

When Linney awoke early the next morning, he got out of bed and, wearing 

only his boxers, went to the guest bedroom to see if Jane was awake. According to 

Jane, Linney got into bed with her and pressed himself up against her from behind, 

and she could feel his penis. At trial, Linney denied getting into the bed and 

insisted he remained at the bedroom door. After they talked for a few minutes, 

Linney went into the living room. When Jane got up shortly thereafter, Linney

 

1 We have used a pseudonym for the complainant to protect her privacy. We have also 

used pseudonyms for all of the complainant’s relatives, except for the appellant himself.
3

asked her if she wanted to watch a movie, and she agreed. Valerie got up to check 

on Steve and, seeing Linney in his boxers, suggested he put shorts on. Linney

complied, and Valerie got back in bed. When Linney returned to the living room, 

Jane was lying on the couch. Linney removed the cushions from the back of the 

couch and lay down behind her. 

Linney and Jane have diametrically different accounts of what happened 

next. According to Jane, she and Linney were both lying on their sides underneath 

a blanket, and, once again, Linney pressed himself up against her from behind and 

she could feel his erect penis on her lower back. Linney placed one hand on her 

breast over her shirt and his other hand on her thigh. He gradually moved his hand 

up her thigh and underneath her shorts and underwear until he was touching her 

vagina. Jane testified she felt confused, and she was too embarrassed to say 

anything or try to leave because she did not want to acknowledge what was 

happening. At trial, Linney testified Jane was lying on her back and he was lying 

next to her on his side with his hands over the blanket. He denied touching her at 

all and specifically denied touching her breast or vagina. 

Jane and Linney agree that at some point during the movie, Steve woke up,

came into the living room, and got between them on the couch. After a few 

minutes, Linney got up to change Steve’s diaper, and Jane went into the bathroom 

until she heard Valerie get up. After Jane came out, Valerie and Steve left to pick 

up doughnuts. Jane stayed at the house with Linney. She phoned her father to ask 

how she was going to return home, and he said Valerie or Linney would take her. 

After breakfast, Linney drove Jane home.

In mid-August, Valerie called Jane and asked her to babysit Steve again a 

few days later. Because Valerie needed Jane early in the morning, she suggested 

Jane sleep over the night before. Although Jane agreed, Cindy thought she seemed 
4

stressed and reluctant to sleep at Valerie and Linney’s house, so she offered to 

drive Jane to babysit in the morning. Cindy thought Jane seemed “too relieved”

about the offer, so she asked whether anything was wrong. Jane initially said no, 

but Cindy sensed otherwise. After she encouraged Jane to be honest, Jane

reluctantly explained how Linney touched her after she babysat Steve in June. Jane 

and Cindy immediately told Jim.

The next day, Cindy made an emergency appointment to see Maurer. Cindy

told Maurer about Jane’s disclosure, and Maurer, pursuant to her legal duty, 

immediately reported it to Children’s Protective Services. On August 28, Jane was 

taken to the Children’s Assessment Center (CAC) for a forensic interview. Jane

described the alleged offense. She also explained that on several previous 

occasions when she was playing keep-away with Linney in David and Donna’s

pool, he had held her from behind, pressed his body against hers, and she had felt 

his erect penis against her back. Jane was then given a physical examination by Dr. 

Farja Pereira, during which she answered questions about her medical history and 

emotional symptoms. Linney was required to report to the CAC for an interview 

the following week, which is when he first learned of Jane’s accusation.

2

Jane’s 

extended family has not spoken to her or her immediate family since that time.

Linney was indicted for two counts of indecency with a child—one for 

touching Jane’s vagina, and one for touching her breast through her clothing—and 

he pleaded not guilty to both. A jury found him not guilty of the first count and 

guilty of the second. On appeal, Linney argues: (1) the trial court

unconstitutionally limited his right to cross-examine witnesses; (2) the trial court 

 

2 During his interview, Linney was asked whether he touched Jane on the morning of 

June 22, 2008, and he said either “I hug her” or “I hugged her,” “because she is my niece, but 

other than that, no sort of contact.” When asked about the discrepancy between this response and 

his testimony at trial, Linney explained that he was in a state of shock during the interview, and 

he answered the questions to the best of his ability.
5

unconstitutionally denied his right to put on a defense at trial; (3) the trial court 

erred by admitting into evidence purported “outcry” testimony from Cindy; (4) the 

trial court erred by overruling Linney’s objection to inadmissible hearsay 

testimony of Kelly; and (5) reversible error is presented by the cumulative effect of 

those errors. Because Linney’s first and second points of error arise from the same 

facts, we consider them together.

II

During its case in chief, the State introduced evidence that in September of 

2008, Jane began experiencing increased anxiety and having nightmares. Shortly 

thereafter, Maurer diagnosed her with post-traumatic stress disorder (PTSD). In the 

months that followed, Jane’s peer relationships deteriorated, and she began 

drinking, using drugs, and sneaking out of the house. As her deviant behavior 

gradually worsened, she began cutting herself again, experiencing suicidal 

ideations, and sexually acting out. The State concluded its case in chief with the 

expert testimony of Dr. Lawrence Thompson, a clinical psychologist who 

specializes in child victims of sexual abuse. Dr. Thompson testified that sexual 

acting out and heightened levels of anxieties and interpersonal difficulties are 

characteristics commonly seen in children who have been sexually abused. 

Through this evidence, the State invited the jury to infer from those behaviors that 

the offense in fact occurred. 

Linney sought to challenge that inference with evidence of an extraneous 

traumatic event—Jane being rejected by the boy to whom she lost her virginity—

which Linney argued was the actual reason Jane began cutting herself again. 

Linney attempted to elicit testimony about the extraneous event from Cindy, Jim, 

Jane, and Maurer, but the State consistently objected to the line of questioning. The 

trial judge limited the testimonies of each witness to different extents. On appeal, 
6

Linney argues the trial court’s limitations violated his constitutional rights to crossexamine the State’s witnesses and to present a meaningful defense.

A

Criminal defendants have a constitutionally protected right to cross-examine 

witnesses. U.S. Const. amend. VI; Delaware v. Van Arsdall, 475 U.S. 673, 678 

(1986); Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000). The scope of 

appropriate cross-examination is necessarily broad: “A witness may be crossexamined on any matter relevant to any issue in the case, including credibility.” 

Tex. R. Evid. 611(b); Caron v. State, 162 S.W.3d 614, 617 (Tex. App.—Houston 

[14th Dist.] 2005, no pet.). Nevertheless, the trial courts retain wide latitude to 

impose reasonable limits on cross-examination. Van Arsdall, 475 U.S. at 679. The 

trial court must carefully consider the probative value of the evidence and weigh it 

against the risks of admission. Hodge v. State, 631 S.W.2d 754, 758 (Tex. Crim. 

App. [Panel Op.] 1982). These potential risks include “the possibility of undue 

prejudice, embarrassment or harassment to either a witness or a party, the 

possibility of misleading or confusing a jury, and the possibility of undue delay or 

waste of time.” Id.; see also Chambers v. State, 866 S.W.2d 9, 27 (Tex. Crim. App. 

1993); Castillo v. State, 939 S.W.2d 754, 758 (Tex. App.—Houston [14th Dist.] 

1997, pet. ref’d).

Additionally, whether rooted in the Due Process Clause of the Fourteenth 

Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth 

Amendment, the Constitution guarantees criminal defendants “a meaningful 

opportunity to present a complete defense.” Holmes v. South Carolina, 547 U.S. 

319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)); Holmes v. 

State, 323 S.W.3d 163, 173 (Tex. Crim. App. 2009). The exclusion of a 

defendant’s evidence will be constitutional error only if the evidence forms such a 
7

vital portion of the case that exclusion effectively precludes him from presenting a 

defense. Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002).

The Constitution does not relieve a defendant from the obligation to comply 

with established rules of procedure and evidence designed to assure both fairness 

and reliability in the ascertainment of guilt and innocence. Chambers v. 

Mississippi, 410 U.S. 284, 302 (1973); see Hammer v. State, 296 S.W.3d 555, 566 

(Tex. Crim. App. 2009) (“Only if the proffered evidence is barred by all state 

evidentiary rules must courts turn to the federal constitution.”). Nevertheless, cases

involving indecency with a child are often “he said, she said” trials in which “the 

jury must reach a unanimous verdict based solely upon two diametrically different 

versions of an event, unaided by any physical, scientific, or other corroborative 

evidence.” Hammer, 296 S.W.3d at 561–62. Because the credibility of both the

complainant and the defendant is a central, often dispositive issue in these “he said, 

she said” trials, the rules of evidence should be used sparingly to exclude relevant, 

otherwise admissible evidence that might bear upon the credibility of either party.

Id. We review the trial court’s decision to bar the admission of evidence for an 

abuse of discretion. Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001); 

Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).

To preserve error, including a constitutional error, for appellate review, the 

appellant must make a timely, specific objection to the trial court and obtain a 

ruling on the objection. Tex. R. App. P. 33.1; Turner v. State, 805 S.W.2d 423, 431 

(Tex. Crim. App. 1991); see Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. 

App. 1990) (holding errors based on the constitutional rights to confrontation and 

due process may be waived by failure to object at trial). The point of error on 

appeal must correspond to the objection made at trial. Broxton v. State, 909 S.W.2d 

912, 918 (Tex. Crim. App. 1995); see Johnson v. State, 803 S.W.2d 272, 292 (Tex. 
8

Crim. App. 1990) (“An objection stating one legal theory may not be used to 

support a different legal theory on appeal.”), overruled on other grounds by 

Heiman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991). Further, error may not 

be predicated upon a ruling that excludes evidence unless the substance of the 

evidence was made known to the court by offer or was apparent from the context 

within which questions were asked. Tex. R. Evid. 103(a)(2). It is the appellant’s 

burden to make a record, through a bill of exceptions, of the evidence he desires 

admitted. Montgomery v. State, 383 S.W.3d 722, 726 (Tex. App.—Houston [14th 

Dist.] 2012, no pet.). “The primary purpose of an offer of proof is to enable an 

appellate court to determine whether the exclusion was erroneous and harmful.” 

Mays v. State, 285 S.W.3d 884, 890 (Tex. Crim. App. 2009) (quotation omitted).

1

Cindy was the State’s first witness. On cross-examination, defense counsel 

asked, “[T]he reason that [Jane] cut herself, isn’t it true, is because - - and she told 

you this - - that she had lost her virginity to a boyfriend and was upset because the 

boyfriend then spent the weekend with his ex-girlfriend?” The State objected, 

arguing the question was argumentative, speculative, and improper impeachment. 

Linney insisted Cindy’s testimony had created the impression that the alleged 

offense was the only cause of Jane’s behavior. He incorrectly alleged that during 

direct examination, Cindy testified there was no other reason for Jane’s cutting, 

and therefore, Linney argued, the proffered testimony was admissible to correct 

that false impression. The trial judge assured Linney he would have the chance to

cross-examine other witnesses, and Linney objected “to not being able to cross this 

one, leaving the wrong impression with the jurors.” The prosecutor emphasized, 

“[Cindy] never said that on direct that the only reason [Jane] is the way she is is 

because of what [Linney] did.” 
9

Linney’s argument was insufficient to preserve a constitutional error. The 

right to introduce collateral evidence during cross-examination to correct the false 

impression created by a witness’s testimony is distinct from the constitutional right 

to cross-examine witnesses. See, e.g., Holland v. State, 802 S.W.2d 696, 700 (Tex. 

Crim. App. 1991) (concluding a hearsay objection did not preserve a constitutional 

error because evidentiary and constitutional errors “are neither synonymous nor 

necessarily coextensive”). Therefore, to the extent Linney’s first and second issues 

relate to Cindy, he failed to preserve the issues. See id.

3

2

Linney tried to introduce similar testimony through Jim, asking, “One year 

later when these behaviors started to appear, your daughter had told you that she 

had been disappointed by the boy that had - - that she had made love to for the first 

time, lost her virginity to?” The State objected, arguing it was irrelevant and 

improper. In response, Linney asserted, “I’m entitled and I believe the case is 

United States v. Wade to present a defense. Every defendant has a right, [a] 

constitutional right, to put on a defense.”4 He did not, however, assert the

constitutional right to cross-examine witnesses. Accordingly, Linney failed to 

preserve his first issue to the extent it relates to Jim. See Acevedo v. State, 255 

S.W.3d 162, 173 (Tex. App.—San Antonio 2008, pet. ref’d) (“To preserve denial 

 

3 Although Linney does not restate his trial argument on appeal, we note that the trial 

court did not abuse its discretion by sustaining the State’s objection. The rule allowing collateral 

evidence to correct a false impression does not apply in this case because any false impression 

left with the jury was created by Linney’s cross-examination of Cindy. See Shipman v. State, 604 

S.W.2d 182, 184–85 (Tex. Crim. App. 1980) (explaining that a party who creates a false 

impression through his cross-examination of a witness cannot rely on his own questioning to 

introduce evidence of collateral matters).

4

The issue in United States v. Wade was a criminal defendant’s constitutional right to 

assistance of counsel. 388 U.S. 218 (1967). In its analysis, the Court explained, “The plain 

wording of this guarantee thus encompasses counsel’s assistance whenever necessary to assure a 

meaningful ‘defence.’” Id. at 225. 
10

of a right to confrontation error, one must specifically object based on the 

Confrontation Clause.”) (citing Holland, 802 S.W.2d at 700).

Linney did object based on his constitutional right to present a defense. We 

need not decide Linney’s constitutional issue, however, because he failed to obtain 

an adverse ruling on his objection. In response to Linney’s objection, the trial 

judge ruled the testimony was premature and advised Linney that he could recall 

Jim after Jane testified about the substance of the statements.5Linney never moved 

to recall Jim, however, and thus failed to obtain an adverse ruling. Therefore, 

Linney failed to preserve any error with respect to Jim’s testimony.

Even if Linney had preserved error, and assuming without deciding that the 

evidence was admissible, Jim’s testimony about an extraneous event that may have 

contributed to the reason Jane cut herself was not so vital to Linney’s defense that 

its exclusion effectively precluded Linney from presenting a defense. Linney’s

primary defense was that Jane is a liar, which he proved through his own testimony 

as well as testimony from Donna, David, and Valerie, all of whom said that Jane 

was not a truthful person. Those witnesses also contradicted Jane’s allegations that 

Linney inappropriately touched her in the pool, and Linney and Valerie both 

challenged Jane’s account of the charged offense. To the extent Linney’s defense 

involved showing an extraneous event that may have caused Jane’s post-offense 

behavior, there was substantial evidence of other stressors in Jane’s life at the time. 

Most notably, it is undisputed that Jane lost her relationships with her extended 

family members as a result of her allegation, and this loss was emotionally difficult 

 

5

The trial judge specifically said, “We talked about it yesterday after - - you will have 

your opportunity. You can recall the witness at that time, but it seems a little premature.” The 

conversation the judge referred to from the previous day took place after Cindy testified, when 

Linney again asked permission to elicit the excluded testimony from Cindy. The State argued 

Jane needed to testify first. The trial judge impliedly agreed, assuring Linney he could recall 

Cindy. 
11

for her. That extraneous event is particularly relevant because, unlike the rejection, 

the loss of her family occurred before all of Jane’s post-offense aberrant behavior.

“That [the defendant] was unable to . . . present his case to the extent and in the 

form he desired is not prejudicial where, as here, he was not prevented from 

presenting the substance of his defense to the jury.” Potier, 68 S.W.3d at 666

(quoting United States v. Willie, 941 F.2d 1384, 1398–99 (10th Cir. 1991)) 

(internal quotation marks omitted).

3

We move now to Jane’s testimony. During cross-examination, Jane said she

began cutting herself again while she was in the tenth grade to relieve stress from 

her family not talking to her. When asked if that was the only cause of her stress, 

she said no. Defense counsel then asked, “Was [sic] there any other events that 

were occurring in your life that caused you stress that caused you to start cutting?”

The State objected to this line of questioning as “specific instances of conduct.” 

The State continued: “No representation has been made by the State that [Jane] 

started cutting solely because of what this defendant did in reference to this entire 

line of questioning.” In a six-minute response, defense counsel contended Linney’s 

right to present a defense required the evidence because the State implied Jane’s 

behavior was “all because of Linney.” Linney would not get a fair trial, counsel 

argued, unless he was permitted to prove “all that behavior that has been described 

is due to . . . entirely something else because [Linney] can’t be responsible because 

he is innocent.” The judge ruled, “Under 401, 402 and 403, I’m not going to allow 

it in. That is why we have the law. You don’t get to go into her sexual history 

unless it’s been made relevant. . . . I don’t find it relevant.” 

Defense counsel asked permission to cross-examine Jane outside the jury’s 

presence, stating for the record, “[I]f I were permitted to ask her the question: Why 
12

did you start cutting again, I proffer her answer would be: Because my boyfriend 

rejected me after he took my virginity. And I would eliminate the possibility that 

this jury could taint him, Tim Linney, with that cutting.” He further explained that 

he wanted to ask Jane how she felt about losing her virginity, her ex-boyfriend, 

cutting herself, and about the coincidental timing of those events. The trial judge 

initially ruled, “I’m not going to let you go into any explicit sexual narrative or 

questioning of this lady . . . I will let you ask if it is causative of her depression or 

whatever it was.” But the State again objected, citing rule 403 and arguing, “the 

reason the law protects victims in this kind of situation is that it is very 

personal. . . . we’ve established from the beginning that there is [sic] various 

reasons why she’s had this self-destructive behavior.” Ultimately, the trial court 

sustained the State’s objection, precluding Linney from questioning Jane outside 

the jury’s presence but assuring him, “you have made your bill of exception and it 

will be preserved for appellate purposes.” 

i

Because the trial court limited Linney’s cross-examination of Jane, we must 

determine whether that limit was reasonable by weighing the probative value of the 

evidence against the risks of admission. See Hodge, 631 S.W.2d at 758. Here, the 

probative value of the excluded evidence was moderate. First, even if the excluded 

extraneous offense contributed to the reason Jane began cutting herself again, that 

would not impeach Jane’s credibility because she neither attributed her cutting to a 

single event nor denied that the offense was a contributing factor. Second, although 

Linney insists the boyfriend’s rejection of Jane was highly probative because it 

was the only specific extraneous event he could point to as a potential alternative 

cause for Jane’s post-offense behavior, we disagree. The loss of Jane’s extended 

family, which was the primary cause she identified when asked why she began 
13

cutting herself again, was also a specific extraneous event, although a long-term 

one. And as discussed above, the loss of Jane’s extended family preceded all of her 

post-offense behavior, whereas the boyfriend’s rejection did not occur until months 

later. The probative value of the excluded evidence is also weakened by Jane’s 

testimony that she began cutting herself “[s]ometime in tenth grade,” which she 

completed in the spring of 2009, because the boyfriend’s rejection did not occur 

until the fall of that year. This timing disparity was potentially explained, however, 

by the fact that Jane also emphasized that she was honest with Maurer, she did not 

tell Maurer she had resumed her cutting habit until the fall of 2009, and Jane 

admitted she was unsure about when some of her other post-offense symptoms 

began to manifest. Further, it is undisputed that although Jane’s aberrant behavior 

began at the beginning of 2009, it did not escalate to the point of her being “out of 

control” until her junior year.

Although the probative value of the excluded evidence was only moderate, 

we conclude that it outweighed the minimal risks of admission. Because the 

rejection neither involved dishonesty on Jane’s part nor contradicted her testimony, 

it is unlikely that the jury would have been improperly influenced to doubt Jane’s 

credibility based on that evidence. To the extent the evidence may have influenced

the jury to conclude the boyfriend’s rejection, rather than the offense, was the 

actual cause of Jane’s post-offense cutting, that influence would not have been 

improper. Additionally, the risk of embarrassment or harassment to Jane was 

minimal because there is no suggestion in the record that the line of questioning 

would have involved any details about her sexual behavior other than when and to 

whom she lost her virginity. Further, the risks of misleading or confusing the jury 

and of undue delay or waste of time were negligible given that the State had 

already elicited substantial testimony from numerous witnesses about Jane’s 
14

symptoms and behaviors after the offense, as well as the extraneous stressors in her 

life during that time. Therefore, having balanced the probative value of the 

excluded evidence against the risks of admission, we conclude the trial court’s 

limitation of Jane’s cross-examination constituted an abuse of discretion. 

ii

Because the trial court excluded evidence in violation of the Confrontation 

Clause, we must conduct a three-prong harmless-error analysis to determine 

whether the error warrants reversal of the conviction. See Van Arsdall, 475 U.S. at 

684; Shelby v. State, 819 S.W.2d 544, 547 (Tex. Crim. App. 1991). First, we 

assume the damaging potential of the cross-examination was fully realized. Van 

Arsdall, 475 U.S. at 684; Shelby, 819 S.W.2d at 547. Second, we review the error 

in connection with the following factors: (1) the importance of the witness’s 

testimony in the prosecution’s case; (2) whether the testimony was cumulative; (3) 

the presence or absence of evidence corroborating or contradicting the testimony of 

the witness on material points; (4) the extent of cross-examination otherwise 

permitted; and (5) the overall strength of the prosecution’s case. Van Arsdall, 475 

U.S. at 684; Shelby, 819 S.W.2d at 547. Finally, we determine whether the error 

was harmless beyond a reasonable doubt. Van Arsdall, 475 U.S. at 684; Shelby, 

819 S.W.2d at 547.

First, we begin with the assumption that if Linney had been permitted to ask 

Jane about the rejection, she would have both acknowledged the event and 

identified it as a contributing factor to her subsequent cutting.

Second, we review the error in connection with the five factors from Van 

Arsdall. Because Jane and Linney were the only two witnesses with any direct 

knowledge of the alleged offense, Jane was the most important witness to the 
15

prosecution’s case, although that is not to say her testimony about her post-offense 

cutting was equally as critical as her testimony about the offense itself. The 

excluded evidence was cumulative to the extent it was merely an additional 

extraneous stressful event that contributed to Jane’s behavior, but not to the extent 

it was specifically offered to explain the revival of Jane’s cutting habit. 

Additionally, had Jane testified about the rejection, the jury likely would have 

heard Maurer’s corroborating testimony (discussed further below) that she believed 

the rejection was related to Jane’s subsequent cutting and that it could have been 

the only cause of that behavior, although Maurer also explained that she could not 

attribute Jane’s symptoms and behaviors to any single event with any degree of 

certainty.

6

Further, the extent of cross-examination otherwise permitted was broad: 

Linney was not precluded from asking Jane about the other stressors in her life 

during the relevant time period or from impeaching her credibility, which we 

discuss in greater detail below. Finally, the overall strength of the untainted 

evidence of guilt was modest. The jury ultimately had to weigh Jane’s credibility 

against Linney’s, and the fact that they found Linney guilty of one count but not 

guilty of the other shows that the jury did not fully credit either party. The State’s 

case was strengthened by the fact that the jury had no indication of what could 

have motivated Jane to fabricate this accusation against her uncle, with whom she 

had previously enjoyed a good, friend-like relationship. Although it was not 

Linney’s burden to provide a motive, the absence of one certainly strengthened the 

State’s position given that the outcome of the case necessarily turned on the 

parties’ credibility.

 

6 Because Dr. Thompson did not mention cutting at all, his testimony would not have 

corroborated or contradicted Jane’s with respect to the excluded testimony.
16

In light of those considerations, we conclude the trial court’s error was 

harmless beyond a reasonable doubt. Even if the jury concluded the boyfriend’s 

rejection caused Jane to cut herself, it would not have impeached her credibility,

suggested why she may have fabricated the offense, or provided an alternative 

explanation for her pre-rejection symptoms or behaviors. Therefore, the evidence 

neither exacerbated the weaknesses in the State’s case nor mitigated the 

weaknesses in Linney’s. Accordingly, the trial court’s limitation of Jane’s crossexamination did not rise to the level of constitutional error.

Having come to that conclusion, we further conclude that the excluded 

evidence did not form such a vital portion of the case that its exclusion effectively 

precluded Linney from presenting a defense. See Potier, 68 S.W.3d at 665.

Therefore, the trial court’s evidentiary error did not violate Linney’s constitutional 

right to present a defense, and we overrule Linney’s first two issues to the extent 

they relate to Jane. 

4

When the State called Maurer, the trial court held a Rule 702 hearing outside 

the jury’s presence. Before Maurer took the stand in the hearing, the trial judge 

cautioned both the prosecution and the defense “not to elicit from this witness 

anything about sexual activity of [Jane].” Linney again objected to this limitation.

During the hearing, Maurer testified that she began seeing Jane on a regular 

basis on August 26, 2008, and she diagnosed Jane with PTSD within the first two 

months of treatment. When asked if she could determine with any degree of 

certainty the cause of Jane’s cutting, Maurer explained “[p]oor coping skills is the 

cause of that, acting out in that way, not being able to cope with her stress, anxiety, 

depression in ways that are more functional.” Maurer could not trace all of Jane’s
17

stress and anxiety back to one event, but she opined that the offense put in motion 

a number of other reactions that were devastating to Jane, and the culmination of 

everything that happened as a result of the offense caused Jane to cut herself. 

Maurer specifically testified that Jane’s problems at home and at school, 

specifically with boys and her peers, contributed to the reason Jane cut herself. 

On cross-examination, still during the Rule 702 hearing, the following 

exchange occurred:

Q: All right. This cutting event that was now first reported on 9/9/09 

was in the same session that [Jane] revealed that she had been rejected 

by her boyfriend after losing her virginity, true?

A: Yes.

Q: Were those two, in your opinion, related?

A: Yes.

Q: And could the cutting have been due exclusively to the rejection by 

the boyfriend who had taken her virginity?

A: It could have.

Defense counsel told the judge he believed he was entitled to repeat the question in 

the jury’s presence, but the judge disagreed. After the hearing, the judge instructed 

Maurer, “You are not to discuss or elicit your own testimony about [Jane] losing 

her virginity or anything like that, if that’s so. I don’t know anything about it. I 

don’t have any evidence before us at this time, but you are not to discuss it.”7

We note that had Linney be permitted to question Jane about the extraneous 

event, we presume there would have been evidence before the trial court about 

Jane losing her virginity. But assuming, without deciding, that the trial court erred 

by limiting Maurer’s cross-examination, we conclude that Linney has not shown 

reversible error. Similar to our analysis above, we start with the presumption that 

 

7

Linney did not make a Rule 702 objection after the hearing.
18

Maurer would have testified that the boyfriend’s rejection caused Jane to cut 

herself. And again, that testimony would not have impeached Maurer’s or Jane’s 

credibility, it would not have suggested why Jane may have fabricated the offense, 

and it would not have provided an alternative explanation for Jane’s pre-rejection 

symptoms or behaviors. Accordingly, we conclude that even if the trial court’s 

ruling was erroneous, it was harmless beyond a reasonable doubt, and it did not 

violate Linney’s constitutional rights to cross-examine witnesses or to present a 

defense.

5

Finally, during Linney’s case in chief, he asked the trial court to reverse its 

previous ruling and allow him to recall Jane and Maurer and ask them about “the 

sexual episodes that were described in Mary Maurer’s notes.” In addition to Jane

losing her virginity, Linney wanted to inquire about Maurer’s notes from June 30, 

2010, which indicated that Jane had engaged in sexual intercourse with multiple 

partners simultaneously. Linney argued that Maurer testified Jane’s sexual acting 

out was one of the behaviors Maurer factored into her PTSD diagnosis. But the 

State correctly pointed out that Maurer diagnosed Jane with PTSD in 2008 when

Jane was still a virgin. 

Linney then argued he had the constitutional right to ask Jane and Maurer 

about those sexual episodes to establish that his alleged assault had not precipitated 

such behavior, but that Jane “independently . . . engaged in those sexual episodes 

of her own free[]will.” But the relevance of establishing such a point is unclear. Dr. 

Thompson did not testify that the sexual acting out commonly seen in child victims 

does not result from free will. Further, although neither Maurer nor Dr. Thompson 

defined sexual “acting out,” it is reasonable to presume that not all sexual behavior 
19

falls within that category, and nothing in the record suggests that Jane losing her 

virginity at the age of sixteen was an example of “acting out.”

8 Accordingly, we 

conclude the trial court did not abuse its discretion by denying Linney’s request to 

recall Jane and Maurer.

* * *

We conclude that to the extent Linney preserved his first two issues for 

appeal, the trial court did not violate his constitutional rights to cross-examine 

witnesses and present a meaningful defense. See Potier, 68 S.W.3d at 666; Lopez, 

18 S.W.3d at 226. Accordingly, we overrule Linney’s first and second issues.

III

In his third issue, Linney contends the trial court erred during the guilt–

innocence phase by admitting purported “outcry” testimony from Cindy in 

contravention of article 38.072 of the Code of Criminal Procedure. Specifically, 

during direct examination, the prosecutor asked Cindy whether, before the charged 

offense, Jane mentioned anything about contact between Jane and Linney in the 

pool. Linney objected, arguing the testimony was hearsay and, alternatively, it was 

an outcry statement describing an extraneous offense. The prosecutor insisted the 

testimony was not being offered to prove the truth of the matter asserted but rather 

to prove Jane’s state of mind. The trial judge allowed the testimony for that limited 

purpose and granted Linney’s request for a running objection. The prosecutor then 

asked, “What did [Jane] say happened in the pool?” Cindy responded, “She said 

she could feel [Linney] in the pool, that she was uncomfortable.” Cindy explained 

that she had not understood what Jane was trying to tell her because Jane said it in 

a “general way.”

 

8 On appeal, Linney does not object to the exclusion of the June 2010 event.
20

A

Hearsay is an out-of-court statement offered to prove the truth of the matter 

asserted and is inadmissible except as provided by statute or otherwise by rule. 

Tex. R. Evid. 801, 802. The hearsay rule does not exclude a statement of the 

declarant’s then-existing state of mind, emotion, sensation, or physical condition, 

such as intent, motive, mental feeling, or bodily health. Id. 803(3). This exception 

does not extend to a statement of memory or belief to prove the fact remembered 

or believed. Id. The hearsay rule also does not exclude a statement of a presentsense impression that describes or explains an event or condition and was made 

while the declarant was perceiving the event or condition or immediately 

thereafter. Id. 803(1). This exception relates to statements about something 

external to the declarant, whereas the exception for then-existing state of mind 

pertains to something internal. We review a trial court’s evidentiary ruling for an 

abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 378–79 (Tex. Crim. 

App. 1990).

In this case, Jane’s statement that she felt uncomfortable when she could feel 

Linney in the pool described an emotion, but it is not admissible as a then-existing 

state of mind because Jane did not make the statement while she was feeling 

uncomfortable. See Tex. R. Evid. 803(3). Similarly, Jane’s statement that she could 

feel Linney in the pool described an external event or condition, but it is not 

admissible as a present-sense impression because it was not made while or 

immediately after Jane perceived the event or condition. See id. 803(1). Therefore, 

neither statement satisfies the requirements of the respective hearsay exceptions.

B

Even though the testimony does not satisfy the state-of-mind exceptions to 

the hearsay rule, it may still be admissible under article 38.072. A statement made 
21

by a child against whom the charged offense was committed that describes the 

alleged offense is not excluded by the hearsay rule if certain procedural 

requirements are met. Tex. Code Crim. Proc. art. 38.072, § 2. But to fall within 

article 38.072, the description must do more than generally allude that something 

in the area of child abuse was going on. Garcia v. State, 792 S.W.2d 88, 91 (Tex. 

Crim. App. 1990); Shaw v. State, 329 S.W.3d 645, 653 (Tex. App.—Houston [14th 

Dist.] 2010, pet. ref’d).

Cindy’s testimony was inadmissible because, first, Jane’s statement did no 

more than generally allude that something in the area of child abuse was going on. 

See Garcia, 792 S.W.2d at 91. Second, even if the statement were sufficiently 

specific, it was inadmissible during the guilt–innocence phase because it described 

an extraneous event rather than the charged offense. Therefore, the trial court 

abused its discretion by overruling Linney’s objection.

C

Having held that the trial court abused its discretion, we must determine 

whether the error is reversible. See Tex. R. App. P. 44.2(b). The admission of 

inadmissible hearsay is non-constitutional error, and it will be considered harmless 

if, after examining the record as a whole, we are reasonably assured that the error 

did not influence the jury’s verdict or had but a slight effect. See id.; Garcia v. 

State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004); Chapman v. State, 150 

S.W.3d 809, 814 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). Moreover, 

improper admission of evidence is not reversible error if the same or similar 

evidence is admitted without objection at another point in the trial. Brooks v. State, 

990 S.W.2d 278, 287 (Tex. Crim. App. 1999); Chapman, 150 S.W.3d at 814.

During Jane’s direct examination, she testified that she told Cindy, “I don’t 

like the way it feels when [Linney] rubs up against me in the pool because I can 
22

feel his penis.” Not only is this testimony similar to Cindy’s, it is substantively 

more harmful because Jane specifically mentions being able to feel Linney’s penis, 

which she claimed was erect at the time.

Nevertheless, Linney argues Cindy’s testimony was harmful not because of 

its substance but rather because it tended “to bolster or corroborate [Jane’s] 

account of the extraneous matters and tended to add credence to her testimony.” 

But, although Cindy’s testimony may have made the jury more likely to believe 

Jane said something to Cindy about Linney touching her in the pool, that is not to 

say it made the jury more likely to believe Jane was being honest to her mother at 

the time she made that statement. This is particularly true given that Cindy testified 

she never saw Linney inappropriately touching Jane in the pool. The jury also 

heard Donna, David, Valerie, and Linney consistently testify that at least one other 

adult was always present when Linney and Jane were both in the pool, no one ever 

saw Linney inappropriately touch Jane in the pool, and Jane never expressed 

hesitation about being in the pool with Linney. Additionally, those witnesses each 

testified that Jane was not truthful.

Accordingly, having considered the record as a whole, we are reasonably 

assured that the trial court’s erroneous admission of the evidence had but a slight 

effect, if any effect at all, on the jury’s verdict. See Garcia, 126 S.W.3d at 927. We 

overrule Linney’s third issue. 

IV

In Linney’s fourth issue, he argues the trial court committed reversible error 

by overruling his objection to Jane’s sister Kelly’s inadmissible hearsay testimony. 

The State contends Kelly’s testimony was admissible pursuant to the hearsay 

exception for prior consistent statements. 
23

A

After the defense rested, the State requested permission to reopen its case in

chief and call Kelly to testify that Jane told her about the alleged offense before 

Jane told Cindy. Linney objected, arguing any testimony Kelly would be able to 

provide would be inadmissible hearsay. The prosecutor countered that the 

testimony fell within the prior-consistent-statement exception, and the trial court 

agreed. Kelly was permitted to testify, “[Jane] told me that when she went to 

babysit with [Steve] . . . and spent the night, that [Linney] put his hand in her pants 

and she didn’t know what to say.” Kelly further testified that Jane said “she didn’t 

like to be around [Linney] because he was too touchy.”

A witness’s prior consistent statement is not hearsay if the statement is 

offered to rebut an express or implied charge against the declarant of recent 

fabrication or improper influence or motive and the declarant made the statement 

before the alleged improper influence or motive arose. Tex. R. Evid. 801(e)(1); 

Hammons v. State, 239 S.W.3d 798, 804 (Tex. Crim. App. 2007); Kelly v. State, 

321 S.W.3d 583, 599 (Tex. App.—Houston [14th Dist.] 2010, no pet.). The trial 

court has substantial discretion to admit a prior consistent statement when there has 

been “‘only a suggestion’ of conscious alteration or fabrication.” Hammons, 239 

S.W.3d at 804–05 (quoting United States v. Frazier, 469 F.3d 85, 88 (3d Cir. 

2006)). But the rule cannot be construed to permit the admission of what would 

otherwise be hearsay any time a witness’s credibility or memory is challenged. Id.

at 805. There is no bright line between a general challenge to memory or 

credibility and a suggestion of conscious fabrication, and “the trial court should 

determine whether the cross-examiner’s questions or the tenor of that questioning 

would reasonably imply an intent by the witness to fabricate.” Id. A reviewing 

court, “in assessing whether the cross-examination of a witness makes an implied
24

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.” Id. at 808 (emphasis in original) (internal quotation 

marks omitted). 

Although Linney’s primary defensive theory was that Jane fabricated the 

offense, there was no suggestion that the alleged fabrication was of recent vintage. 

The State argues instead that Kelly’s prior-consistent-statement testimony is 

necessary to overcome suggestions by the defense that Jane was improperly 

influenced by other witnesses when giving her statement and answering questions 

at the CAC. Nevertheless, Linney’s cross-examination of those witnesses did not 

imply that anything about the CAC interview improperly influenced Jane to allege 

that Linney touched her. Rather, Linney suggested the interview improperly 

influenced her to report emotional symptoms that she was not actually 

experiencing. Kelly’s testimony served no rehabilitative function as to that 

evidence. 

Additionally, although Linney’s counsel began cross-examination of Jane by 

eliciting testimony that she met with “four other D.A.s, doctors, [and her] parents,” 

to help her anticipate the questions she may be asked during trial, he did not imply 

that Jane was influenced to fabricate the offense by those preparations. Instead, 

after asking Jane about how she had prepared for trial, Linney asked her about 

inconsistencies between her statements to Dr. Pereira and her testimony at trial.

And later, during Linney’s closing argument, he suggested Jane had been coached 

on how to answer certain difficult questions about her actions on the morning of 

the alleged offense, such as why she did not go with Valerie to get doughnuts or

why she did not call her father sooner. Again, Kelly’s testimony served no 

rehabilitative function as to that suggestion.
25

We thus conclude that the trial court abused its discretion by overruling 

Linney’s objection to Jane’s testimony. But we should not overturn the conviction 

unless, after examining the record as a whole, we conclude that an error may have 

had “substantial influence” on the outcome of the proceeding. See Burnett v. State, 

88 S.W.3d 633, 637 (Tex. Crim. App. 2002).

B

In this case, the trial court’s error was harmless. Kelly testified that Jane told 

her Linney put his hand down Jane’s pants, but the jury found Linney not guilty of 

the count related to allegedly touching Jane’s vagina. Kelly also testified that Jane

said she did not like to be around Linney because he was “too touchy,” but Jane

gave similar testimony without objection. 

Linney argues Kelly’s testimony was damaging because of its tendency to 

bolster Jane’s credibility, but any tendency to do so was mitigated by the 

substantial testimony contradicting Jane’s allegations about Linney improperly 

touching her and about her feeling uncomfortable around him. As previously 

discussed, Donna, David, Valerie, and Linney all testified that Linney and Jane

were never alone in the pool and that no one ever saw him improperly touching 

her. Donna and David also both testified that they never saw Jane being reluctant 

to talk to or play with Linney, and they never saw her get out of the pool when he 

got in or stay out of the pool when Linney was already swimming. 

Therefore, after examining the record as a whole, we are reasonably assured 

that the trial court’s error did not have more than a slight effect, if any, on the 

jury’s verdict. See Garcia, 126 S.W.3d at 927. Accordingly, we overrule Linney’s 

fourth issue.
26

V

In Linney’s fifth issue, he argues that the cumulative effect of the errors set 

forth in his first four issues merits reversal even if no single error, considered 

alone, is deemed reversible. 

A number of errors, even if harmless when separately considered, may be 

harmful in their cumulative effect. Chamberlain v. State, 998 S.W.2d 230, 238 

(Tex. Crim. App. 1999) (citing Stahl v. State, 749 S.W.2d 826, 832 (Tex. Crim. 

App. 1988)); Melancon v. State, 66 S.W.3d 375, 385 (Tex. App.—Houston [14th 

Dist.] 2001, pet. ref’d) (en banc). Non-errors, however, may not produce harm in 

their cumulative effect. Hughes v. State, 24 S.W.3d 833, 844 (Tex. Crim. App. 

2000); Melancon, 66 S.W.3d at 385. This doctrine provides relief only if the 

cumulative effect rendered the phase of the trial fundamentally unfair. See Estrada 

v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010) (citing United States v. Bell, 

367 F.3d 452, 471 (5th Cir. 2004)).

In his brief, Linney cites authority for the law of reversible cumulative harm,

but offers only two sentences to explain his position:

It is respectfully submitted that the errors herein demonstrate that the 

trial court abused its discretion in the rulings that it made, and as a 

result, when viewed separately or cumulatively, the substantial rights 

of the appellant were adversely affected. Tex. R. App. P. 44.2(b). In 

addition, it cannot be said beyond a reasonable doubt that the errors 

set forth in Points of Error One and Two did not contribute to the 

conviction or punishment herein.

As explained above, to the limited extent Linney has preserved for review the 

errors alleged in his first two issues, he has demonstrated no error. Further, we do 

not see how the trial court’s two erroneous evidentiary rulings resulted in a

fundamentally unfair trial for Linney. We need not decide this issue, however,

because Linney’s conclusory statement that the cumulative harm of the trial court’s 
27

errors adversely affected his substantial rights is insufficient to maintain his burden 

to adequately brief the point of error. See Tex. R. App. P. 38.1(i); Swearingen v. 

State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003) (finding issue inadequately 

briefed because appellant failed to apply law to facts as required under appellate 

rules); Vuong v. State, 830 S.W.2d 929, 940 (Tex. Crim. App. 1992) (concluding 

appellant’s issue was inadequately briefed because he cited no legal authority to 

support his argument). Therefore, because this issue is inadequately briefed, 

Linney presents nothing for review. 

Accordingly, we overrule Linney’s fifth issue.

* * *

For the foregoing reasons, we affirm the judgment of the trial court.

/s/ Jeffrey V. Brown

Justice

Panel consists of Chief Justice Hedges and Justices Brown and Busby.

Publish — TEX. R. APP. P. 47.2(b).