## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00007

- CR

BRANDON GABRIEL CHAPPELL , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 336th District Court Fannin County, Texas Trial Court No. CR

- 21

- 279 61

Before Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice van Cleef2 

### ME MORANDUM OPINION
A Fannin County jury convicted Brandon Gabriel Chappell of aggravated sexual assault of a child

. In accordance with the jury’s assessme nt, the trial court sentenced Chappell to thirteen years’ imprisonment and ordered him to pay a $10,000.00 fine

. On appeal, Chappell argues that the trial court abused i ts discretion by excluding text messages allegedly relevant to his d efensive theory an d by admitting the victim’s forensic interview. Chappell also raises a point arguing cumulative error.
We find that Chappell abandoned his request to introduce most of the text messages, that the trial court did not err by excluding th e remainin g text m essages, and that Chappell cannot show that he was harmed by the admission of the victim’s forensic interview. We also overrule Chappell’s multifarious cumul ative error complaint. As a result , we affirm the trial court’s judgment.
I. F actua l Background
Th e child victim, Naomi, was seventeen at the time of trial. 1 Naomi testified that she lived with her mother, Heather, her younger brothers, Leon and Zeb, and Chappell. Naomi said that Chappell “was always angr y , ” and Naomi feared him be cause Chappell wo uld hit her and her mother. She descri bed instances of sexual abuse while living in other states . Naomi testified that she first became scared of Chappell while living in Arkansas after he came int o her bedroom

1 To protect t he i d en t i ty of t he c hild victim, we use pseudonyms for the child and her family. See T EX
. R. A PP
. P. 9.10(a)(3).3

while she was asleep and w oke he r by “to uch ing around [her] vagina” on top of her clothing. 2
After a move to Oklahoma, Naomi remembered that Chappell placed his finger in her vagina and that it felt “nasty” and “gross.” When Naomi was eleven, she and her family moved wit h Chap pell to Leonard , Texas , to be closer to Chappell’s biological daughter, Jacklyn

. 3 Naomi testified that Chappell continue d coming in to her bedroom “late at night” to “touch over [ her] clothes, or

. . . would just go through [her] shorts and rub [her] vagin a.” According to Naomi, the inappropriate touching occurred from the time she turned eight years old until she was twelve. Naomi said she would lay with Chappell in his bed while her mother was at night school and that , on one occasion, Chappell tr ied to take her pants off while she was asleep with him. Naomi said she “got really scared” because Chappell “had never taken off [her] pants” since he would “jus t go through [her] shorts” and underwear and, as a result, she told Hea ther that something in approp riate happened

. Heather testifi ed that Naomi’s report ca me right after Chappell had pulled her out from cheerleading

. Chappell ove r heard Naomi’s repor t and came out to meet them. According to Heather , “ [ Chappell ] started crying, and he

. . . loo ked at [Naomi] . And he said, [y] ou kno w I would never do that to you.” Heather testified that she was going to call the police but hung up the phone after Naomi immediately recanted by saying , “No, he didn’t do that.” Heather and Naomi both testified th at Cha ppell admitted that he had t ouched Naom i while in the master

2 No other touchin g occ urred while Naomi lived in Arka nsas.

3 Naomi sai d it “was a d ifficult time in [her] life” because Chappell treated Ja ckly n “ b e tter th an [ her] and [her] brothers” and because Heather and Chappell fought often.4

bedroom , but said it was because he mistook Naomi for Heather as he was waking up

. 4 Naomi also testified that Chappell said the medications he received from a v eteran’s a ffairs hospital for
po st

- traumatic stre ss disorder made him “ sleep walk ” and touch her

. Because Naomi had previously told Heath er that she would wake to find Chappell in her bedroom, Heather decided to leave Chappell , who was abusive , despite Naomi’s recantation.
T he e videnc e showed that Leo n and Zeb contin ued to live with Chappell while Naomi moved in with her grandparents and then later with Heather, w ho began dating and living with a man named G uy. During that time, Naomi called , texted , and visited Chappell because her siblings lived wit h him and she “w anted to be a part of their lives.” Naomi said she continued to tell Chappell that she loved him because “[h]e still raised [her].”
Naomi s aid she was desperate to get away from Guy

. She testified that she texted
C happell to notify him that she wanted to l eave Heathe r’s house a nd wished instead to live with Chappell or Jacklyn and her mother, Saman tha. Heather and Chappell both told Naomi that they were not going to allow her to move in with Jacklyn and Samantha. Naomi told Chappell sh e was going to move out anyway and, eight days later, Naomi made an outcry of sexual ab use against Chappell to Samantha, who called Child Protective Services (CPS)

. The evidence showed that Naomi again recanted her allegations. L e on and Zeb both
test if ied that Naomi told them she ha d made up allegations of sexual abuse against Chappell because she wanted Heather and Chappell to remain separated. Leon added that Naomi did not

4 Heather testified tha t she “ weighed b etwee n 160 a nd 180 pounds ” and “ Naom i weighed about 8 9 pounds, 90 pounds. ” Nao mi testified that it would be hard to mistake her fo r her mot her given the difference in their size.5

seem serious about her allegations

. Naomi’s grandmothe r , Martha, also testifi ed that Naomi

re can ted, pos sibly for “fear of what might happen” if she came forward.
After CPS became involved, fifteen

- year - old Naomi was interviewed by Mandi Bruso, the n director of the Fannin Coun ty Child ren ’ s Advo cacy Center (CAC). After counsel c ross ex amined Naomi, the State intro duced the CAC recorded interview

. During her interview, Naomi said that Chappell had sexually assaulted her and first started to touch her inappropriately when she lived in A rkans as. Naomi said that , after moving to O k lahoma, Chappell would come into her be droom and w ould inser t his finger into her vagina while she pretended to be asleep. Naomi told Bruso that , after they moved to Leonard, Chappell made her sleep in his bed when her mother wa s not the r e and would slap or spank her if she did not kiss him on the mouth. Naomi said that Chappell would go underneath her clothing to touch her but tri ed to pull down her pants in Leonard, which led to N aom i making an outcry to Heather. Acco rding to Naomi, Chappell told Heath er that he accidentally touched Naomi b ecause his medication confused him into believing that Heather was in the bed with him. Naomi told Bruso that Heather believed Chappell and en couraged Naomi to lie by saying she fab ricated the allegation to get her c ell phone back. Naomi said that Heather l eft her whe n she was thirteen, dropped her off at her grandparent’s house, and allowed Leon and Zeb to move in with Campbell. N aomi also told Bruso that Chappell and Heather we re both abusive toward her and that she told her grandparents about Chappe ll’s sexual abus e, but they did nothing. She was later forced to move in with Heather and Guy, who allegedly used marihuana. At the time of t he interview, Naomi told6

Bruso that she had moved out of Heather’s house, was living with her grandparents, but w ished to live wi th Jacklyn and Samantha. When asked if she had anything else to tell Bruso, Naomi said that Leon a n d Zeb would lie f or Chappel l because they enjoyed living with him and because he let them do what the y wanted. When Bruso asked if Chappell was abus ing anyone else, Naomi said she was unaware of Chappell sexually abusing anyone else but feared that he could be abusing Zeb , t hough she had no proof

. Marco Robles, an offic er with the Leonard Police Depar tment, watched the CAC interview and decided to interrogat e Chappell. In his recorded interview, Chappell said that Naomi made up allegations against him or alle gations of drug abuse against Heather every time sh e was grounded, had her cell phone confi sca ted, or did not get her way. Chappell told Robles that Naomi had created the newest allegations because she was not allowed to live with
Sa mantha , who had no rule s for Jacklyn or N aomi. Even so, Chappell admitted that , while waking up after taking pre scr ibed sleeping pills to treat his post

- traumatic stress disorder , he had accid entally rea ched over in his bed for Heather but had touched Naomi’s breasts on on e occasion and her bottom on anothe r , over Naomi’s clothing

. Aside from those two incidents,

w hic h Chappell said were accidents, he denied any inappropriate touching or sexu al assault. After hearing all the evidence, the jur y found Chappell guilty of aggravated sexual assault of Nao mi.
II. Standard of Review Chappell’s non - multifarious point s o f error complain of the trial court’s evidentiary rulings. “We review a trial court ’ s decision to admit or exclude evidence for an abuse of7

discreti on.” Flowers v. State , 438 S.W.3d 96, 103 (Tex. App.

— Texarkana 2014, pet. ref ’ d) (citing Martinez v. St ate , 327 S.W.3d 727, 736 (Tex. Crim. App. 2010)). “Abuse of discretion

occu rs only if t he decision is ‘so clearly wrong as to lie outs ide the zone with in which reasonable people might disagree.’ ” Id

. (quoting Taylor v. State , 268 S.W.3d 571, 579 (Tex. Cr im. App. 2008)). “We may not substitute our own decision for that of the tr ial court.” Id

. (citing Moses v.
State , 105 S.W.3d 622, 62 7 (Tex. Crim. App . 2003)). “We will uphold an evidentiary r uling if it
was correct on any theory of law applicable to th e c ase.” Id

. (citing De La Paz v. State , 279 S.W.3d 336, 344 (Tex. Crim. Ap p. 2009)).
I II. The Trial Court D id N ot Abuse i ts Discreti on by Overruling Chappell’s Preserved Complaints A bout Excl uded Text Messages In his first point of error, Chappell argu es that the trial court erred by excluding voluminous text messages between Naomi and C happell. W e find that Chappell abandoned his

r equest s with res pect to most of the text messages and that the trial court did not err in excluding the remaining messages

. A. Chappell Abandoned His Requests with Respect to Most of the Messages
Du ring trial, Chappell initially stated that he wished to in troduce “ hundred s of page s of
t ext messages ” between Naomi and Chappell for the purpose of showing that she desperately wi she d to leave Heather’s house and fabricated the outcry to accomplish that e nd. The St ate responded that it di d not unde rstand how fabricating an all eg ation against Chappell would have helped her to leave Heather’s house. The State objected to the introd uct ion of the text messages on the grounds that they were irrelevant and would conf use the jur y. After the defense a rgued that the messages addres sed Naomi’s credibility because the allegat ion occurred after Chappell8

and Heather said Naomi could not live wit h Samantha , the trial court said it would not admit the evidence. Yet, the tria l court lat er found th at the State had opened the door to the in troduction of this evidence after showing Naomi’s recorded CAC interview

. Chappell abandoned his complaint w hen h is counsel later said , I frankly wasn ’ t going to offer [the text messages]

. I was goi ng to ask [Na omi] questio ns, and if she denied it, then I would show her the text message.

. . . If the State wants me to offer it, I ’ m offering it, but I really wa sn ’ t intending it

-- to do it that way. The t rial court then issued a “pre

- ruli ng , ” saying it would allow evidenc e (1) that Naomi wanted Chappell to call CPS on Heat her and Guy, (2) that she sought Chappell’s assistance to

move in with Jacklyn and Sam ant h a , ( 3) that Naomi wished to live with Chappell, and (4) o f any

“ affection ate text me ssag es . . . [indicatin g] positive feelings toward the De fendant. ” Therefore , the trial court reconsidered its prior ruling, keeping out only the evidence that Naomi w ish e d to be emancipated. During cross

- examination, Chappell q uestioned Naom i a t length about the substance of her text messages. Through this qu estion ing, Chappell established that Naomi told him she loved him, wanted to leave Heather’s house, wished to l ive w ith Chappell or Samantha , and that her requests to move were denied sh ort ly befor e her outcry to Samantha

. When Chappell showed that Naomi wished for him to pick her up, the State objected on the ground that there was “ no context behind [those] text mes s a ges .” Chappell responded that he was “ha ppy to offer them,” but th e State’ s objection was overruled , Chappell continued his questioni ng, and the text messages were not offered after the trial court had reconsidered its initial ruling.9

An adverse r uli n g is required to preserve error in an evid entiary ruling. See Geude r v. Sta te , 115 S.W .3d 11, 13 (Te x. Crim. App. 2003). Our review o f the transcript shows that the tri a l court reconsidered its initial ruling on the text messages , except for the lega l i s s ue of emancipation, after finding that th e State had opened the doo r to the m. Even so , Chappell abandoned his request to admit the te xt messages into evidence and instead chose to question Naomi about them

. As a result, Chappell admits in his brief tha t “ [t ] he trial court did allow Appellant to pres e nt some of the proffered evidence .” Due to the trial court’s reconsideration, we find that Chappell did not secure an adverse ruling on the admissibility of text messages , except for those involving eman cip a t ion

. As a result , we find Chappel l’s complaints about the
exclusion of text mes sages unpre served except for the messages inv olving emancipation.
B. The Trial Court Did Not Err b y Excluding Messages In volving Emancipation
As for the text messages on em anc i p ati on, we find tha t the trial court did not abuse its dis c re tion in excluding th is evidence

. 5 Chappell wanted to introduce messages showing that Naomi wished to be emancipated from Heather. We find those text messages irrelevant.

“ Evidence is releva nt i f : (a) it has any tendency to make a fact more o r less probable than it would b e without t he evidence; and (b) the f act is of consequence in determining the action. ” T EX
. R. E VID
. 401. The record established that Chappell was not Naomi’s biological
fat h e r a nd that N aomi did not live with Chappell dur ing the time of the text messag es. In li g ht of the fact that it all owed Chappell to show that Naomi asked to live with him or Sam antha before

5 The trial court indicated that it would not allow discuss ion of emancipation b ecause “the child clearly doesn ’t know what’s invo lved ther e.” After the trial court clarified that Chappell could int rodu c e e v idence that Naomi wished to live with either Chappell or Samantha but no t evidence of emancipation, Chappe ll’s counsel said, “I ’m okay with emancipation.” Ev en so, w e do no t fi nd this issue unequivocally waived.10

her outcry to Samantha , t he trial court found that the me s s ages sh owin g that N aomi wished to be legal ly emancipate d from Heather were irrelevant because th e y had no tendency to make the allegations of sexual assault by Chappell more or less probable and had no bearing on the issue of her credibility . We agre e. A s a res ult, we find that the trial court did not abuse its discretion by excluding the te xt message s about emancipation. 6 We overrule Chappell’s first point of error.
IV. Chappell Was Not Harmed b y the Admission of the Recorded CAC Interview During hi s opening sta tement, Chappell accused Naomi of fabricat ing “a claim” and later “retract[ing] some of the things that [she had] c laimed were going on.” The State presented Naomi as a witness in its case

- in

- chief but did not seek to introduce the CAC int erv i e w recor ding during her test i mony. On cross

- examination, in an apparent effort to discredit her testimony ,

couns el questio n ed Naomi about her motives to fabricate an outcry and cross

- examined her about her recantations

. To rebut Chappell’s charge o f f a b ricatio n, t he State sought t o introduce the CAC interview. Chappell objected to the introduction of the recording o n t he grounds that it constituted hearsay and , even though Naomi was available at trial, violated his Confrontation

6 In h is harm analysis , Chappell a rgu e s tha t “[t]h e ex cluded evidence was significant to Appellant’s defe nsive theory that [Naomi] was motivated to m ake false allegations against him because Appellant did not permit or h elp her to achieve her most desired goal [of moving away from Heather] .” The r ecord s hows that Chappell developed this defensive theory at trial and was able to show that Naomi had req uested to live with him se veral days before her CAC inter view

.11

Clause rights. I n his s econd p oint of error on appeal, Chappe ll argues that the trial court erred by overruling his hearsay objection

. 7

“ Rule 801(e ) (1)(B) gives substantive, non

- hearsay status to prior consistent statements of a witness ‘offered to rebut an express or im pli e d charge

. . . [ of ] recen t [] fabricat [ ion ]

. . . [ or ]

. . . improper influence or motive.’ ” Hammons v. State , 23 9 S.W.3d 798, 8 04 ( Tex. Crim. App. 2007) (quoting T EX
. R. E VID
. 801(e)(1)(B))

. For a prior consistent statement to be admissible the follo win g four el emen ts m ust be met: (1) the declarant must testify at trial and be subje ct to cross

- examination; (2) the re must be an e xpre ss or implied charge of rec ent fabrication or improper influence or motive of the declarant ’ s testimony by the opponent; ( 3 ) the pr opon ent must offer a prior statement that is consistent with the declarant ’ s challenged in

- court testimon y; and , (4) th e pr ior consistent statement must be made prior to the time that the supposed motive to falsify arose. Id. (emphasis added) (c i t ing Tom e v. Un i ted States , 513 U.S. 150, 156

– 58 (1995))

. Since Chappell introduced evidence showing t hat the al leged motive to fab ricate the allegations against him arose before the CAC interview, he argues that the trial court erred by admitting it und e r Rule 8 01(e )(1 ) (B)’s hearsay exception.
Even a ssuming error, we find that Chappell cannot show that he was ha rmed by the adm issi on of the CAC interview . First, “ e rroneously admit t [ e d ] evidence ‘ will not result in

7 Chappell does not argue Confrontation Clause grounds in his brief

. Inst e ad, Cha p pell argues that the recording should not have been admitted because it contained evidence of extra neous - offense evidence . Because Chappell’s point of error related to extraneo us - offe nse evidence was not pr esen ted at trial, we find that he failed to p res e rve t his iss ue s ince a “point of error on appeal must comport with the objection made at trial.” Wilson v. State , 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); see Swain v. State , 181 S.W .3d 359 , 367 (Tex. Cri m. A pp. 2005).12

reversal when ’ ” substantially simi lar e vidence is adm i tted “ without objection, either before o r after the comp lained

- of ruling. ” Coble v . State , 330 S .W .3d 253, 282 (T ex. Crim. App. 2010) ( q uoting Leday v. State , 983 S.W.2d 713, 718 (Tex. Cri m. App. 1998))

. The record shows that
many of Nao m i ’s stat emen ts o n the CAC interview, particularly the statements describing Chappell’s sexual abuse of Naomi, were c um ulative of the test imony al ready before the jury. Although Chappell argues that the CAC interview contained specific references of do mes t i c abuse tow ard Heather and physical abuse toward Naomi, both Naomi and Heather had already testified that Chappell wa s abusive t owar d th em. Second, we review allegedly erroneous admission of non

- cumulative evidence heard on the CAC interview for no n - c o n stituti onal err or. See T EX
. R. A PP
. P. 44.2(b); Potier v. State , 68 S.W.3d 657, 663 (Tex. Crim. App. 2002); Solomo n v. State , 49 S. W.3d 356, 365 (Tex. Crim. App. 2001)

. Under this standard, we will not overturn a criminal conviction if , “after exa mi nin g the rec ord as w hole, [we have] fair assurance that the error did not influence the jury, or had but

a slight effect .” Johnson v . Sta te , 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Here, Chappell argues that he was harmed by “references to the idea t hat [ he] was als o a b using

. . . [Zeb].” Yet, Naomi’s CAC interview showed that she had not heard that Chap pell had sexu al ly abuse d
anyone e lse but her. Although she was concerned for Zeb, Naomi did not say that Chappell had

s exually abused him. Keeping in m ind tha t “[ t] h e testimony of a child victim alone is sufficient to support a conviction for aggravated s exual assault ,” we ha ve fair as sura nce that the portion of Naomi’s
CAC interview related to Zeb had no influence on the jury. Scott v. State , 202 S.W

. 3 d 405 , 40813

(Te x . App.

— Texarkana 2006 , pet. ref’d )

. The jury charge focused the jury on conduct committed against Naomi

. Aside from Na omi’s speculati on d uring her CAC interview, there was no evidence showing that Chappell had sexually abused Zeb

. In fa c t , Zeb t esti fie d in Chappell’s favor at trial and said that Naomi had made up the allegations against Chappell

. Also, t he State did not ment ion any al lega tion against Zeb during closing argument

. As a result , we assume that the jury followed the tria l c o u rt’s in stru cti o n to refrain from considering any
extraneous

- offense evidence unless it found that the act was committed beyond a reasonable dou b t

. See Thrift v. State , 176 S.W.3d 221, 224 (Tex. Crim. App. 2005) (“ On appeal, we generally presume the jury foll ows t he tria l co urt ’ s instructions in the manner presented .”). Instead, we conclude that the jury followed the trial court’ s instructi on s t o “not consider thi s [extraneous

- offense ] evidence as proof of the offense c harged in the indictment, if any.”
Under the uni q u e facts of thi s case, w e find that Chappell was not harmed by the admission of the CAC interview. As a resul t, we overrule his seco nd point of error. V. We Overrule Chappell’s Multifarious Cumulative Error Complaints In his third point of error, Cha ppe l l raises cum ula t ive error. Within that point, Chappell (1) complains of a Sexual Assault Nurse Examination ( SANE) re port that was no t offered into evidence ; (2) rais es several grounds for ineffective assistance , including that counsel failed to ob ject to e xtraneo us - o ffe n se evidence on the CAC re cording , failed to object to extraneous

offense evidence that Chappell committed acts of family violenc e, and failed to ob ject to an alleged ly i mproper Allen c harge on punishment ; and (3) complains that the verd ict w a s not

unan imous.14

“To avoid forfeiting a legal argument for inadequate briefing, an appellant ’ s brief must contain ‘a clear and concise argume nt for the c ontentions made , wi th appropriate citations to authorities and to the record.’” Taylor v. Stat e , 5 5 8 S.W.3 d 21 5, 218 (Tex. App.

— Texarkana 2018, no pet.) ( quoting T EX
. R. A PP
. P. 38.1(i) ) ; see Lucio v. State , 351 S.W.3d 878 , 896

– 97 (Tex. Crim. App. 2 011); Busby v. State , 253 S.W.3d 661, 673 (Tex. Crim. App. 2008)). “Because the Texas Court of C rimi nal A p peals has emphasized that an appellate court has no obligation to construct and compose issues, facts, and arguments for a n appellant, e ncompassed wi thin R ule 38.1 is the par ty ’ s task of explaining or discussing why an argument has substance.”
T aylo r , 5 5 8 S.W.3 d at 218 (citing Wolfe v. State , 509 S.W.3d 325, 343 (Tex. Crim. App. 2017);
Lucio , 351 S.W.3d at 896

– 97; Busby , 253 S.W.3 d at 673 ). “To avoid forfei ture, a party m u st provide substantive analysis by applying the law to the facts.” Id

. (ci ting Li n n e y v. S tate , 413 S.W.3d 766, 767 (Tex. Crim. App. 2013) (Cochran, J., concurring in refusal to grant petition for discre tionary r eview)). “A brief that fai ls to apply the law to the facts does not comply with Rule 38.1 and presents nothing for re view .” I d

. (cit ing Swearingen v. State , 101 S.W.3d 89, 100 (Tex. Crim. App. 2003)). We overrule Chappell’s multifarious cumulat ive error complai nt s because they ar e inadequately br ie fed. First, the SANE report was not offered into evidence and, as a res ult, th e brief f ai ls to criticize any action or inaction by the trial court. As for Chappell’s ineffective assistance claims, they are inade quately briefed since Chap pell fails to c it e or apply the relevant Strickland standard. See Strickland v. Washingt on , 4 66 U .S. 668 , 68 7 (1984) ( To show ineffective assistance, a defendant must prove (1) that his trial “ counsel ’ s performance was15

deficient ” and (2) “ that the deficie nt performance prej u diced [ him ]

. ” )

. As for the complaint of a

non - unanimous verdict, the sub j ec t was rai sed by a motion for new trial, but Chappell does not apply the proper abuse of discretion standard or argue that the trial court abused its discretion b y overruling th e mo tion for new trial. See State v. Gutierrez , 541 S.W.3d 91, 97

– 98 (Te x. C r im

. App. 20 17)

. We overrule Chappell’s last point of error.
V I . Conclusion We affirm the trial court’s judgment.

Cha rles van Cleef Justice
D ate Submitted: July 17, 2023 Date D ecided: August 4 , 2023 Do Not Publish