In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-21-00171-CR

___________________________

On Appeal from the 271st District Court

Wise County, Texas

Trial Court No. CR22323

Before Kerr, Bassel, and Womack, JJ.

Memorandum Opinion by Justice Kerr

CHARLES RAY GARY, Appellant

V. 

THE STATE OF TEXAS
2

MEMORANDUM OPINION

A jury found Appellant Charles Ray Gary guilty of continuous sexual abuse of a 

young child and assessed his punishment at life in prison. See Tex. Penal Code Ann. 

§ 21.02(b), (h). Gary appeals his conviction, arguing in seven issues that the trial court

reversibly erred by submitting a jury charge that did not properly instruct the jury on 

extraneous-offense evidence (issues 1–3); by admitting extraneous-offense evidence

(issues 4–5); and by admitting hearsay testimony from a sexual-assault nurse examiner 

(issues 6–7). Because Gary forfeited his extraneous-offense evidence complaints and 

because the trial court did not otherwise err, we will affirm.

I. Background

In late May 2020, sisters M.C. (Mae), who was seven years old, and J.C. (Joy), 

who was eight years old, made outcries to their mother E.C. (Mother) that Gary had 

touched and licked their genitals.

Mother took both girls to Cook Children’s Medical Center in Fort Worth

where Teresa Fugate, a certified sexual-assault nurse examiner (SANE), examined 

them on June 15, 2020. Nurse Fugate took a medical history from Mother and took a 

patient history from each girl separately without Mother present. During Mae’s patient 

history, she told Nurse Fugate that starting when she “was like maybe three or four

years old,” Gary had “rubbed [her] front privates” “mostly under” her clothes and 

that he had “licked [her] private[s]” once. Joy pointed to her genital area and reported 

to Nurse Fugate that Gary had rubbed “down there” mostly under her clothes and 
3

that “he would lick down there . . . a bunch.” Because more than 120 hours had 

passed since the alleged abuse, the girls were considered “nonacute,” which means 

that DNA could not be collected and that the girls were tested but not treated with 

medications to prevent infection. Nurse Fugate examined the girls, tested them for

sexually transmitted infections, and found no infections or physical injuries.

In July 2020, a grand jury indicted Gary under two separate cause numbers for 

continuous sexual abuse of a young child. In CR22323, the victim was Mae. In 

CR22322, the victim was Joy. The case involving Mae proceeded to trial and is the 

subject of this appeal.

II. Relevant Pretrial Matters

The State filed a notice of its intent to offer evidence of extraneous offenses

and bad acts under Articles 37.07 and 38.37 of the Texas Code of Criminal Procedure 

and Texas Rules of Evidence 404(b) and 609 in which it listed, among other things, its 

intent to offer evidence of Gary’s alleged sexual abuse of Joy. In response, Gary filed 

a written objection to the State’s extraneous-offense evidence under Rules of 

Evidence 401, 402, 403, and 404(b). Gary also filed (1) a “Motion for Limiting 

Instruction (Rule 404b Evidence),” which asked the trial court to give the jury his

proposed limiting instruction each time extraneous-offense evidence was admitted,

and (2) “Defendant’s Requested Jury Instruction[:] Limiting Instruction on 404(b)

Evidence,” which asked the trial court to include his proposed limiting instruction in 

the charge. The trial court never ruled on Gary’s written objection to the State’s 
4

extraneous-offense evidence, but it granted both of Gary’s limiting-instruction 

motions.

Gary also filed a motion in limine, seeking to exclude the following evidence

and to prevent the State from referring to it until a hearing could be held outside the 

jury’s presence to determine the evidence’s admissibility:

[A]ll extraneous crime or misconduct evidence, which is not alleged in 

the indictment, unless it can be shown by sufficient proof that [Gary]

perpetrated such conduct, that this evidence is relevant to a material

issue in the case, other than character conformity, and that its probative 

value outweighs its potential for prejudice.

. . . [A]ll extraneous crime or misconduct evidence, notice of 

which was requested by [Gary], but not provided by the [S]tate as

required by Rules 404(b) and 609(f) of the Texas Rules of Evidence, and 

Art[icle] 37.07(g) of the Texas Code of Criminal Procedure.

Alternatively, any purported acts would not be admissible under Texas 

Rules of Evidence 403, 404(a),(1),(b), or 608.

The trial court granted Gary’s limine motion.

III. The Trial

After the jury was empaneled and sworn but before opening statements, the 

parties discussed the extraneous-offense evidence outside the jury’s presence:

[THE STATE]: Judge, in an effort not to violate any type of motions in 

limine, we have had some discussion and I have given the Defense 

counsel notice of our intent to call an extraneous victim. The Court is 

aware we’re proceeding on the case that involves [Mae], and we intend --

we believe that it is permissible under 38.37 to bring up and discuss the 

abuse by the Defendant of her sister, [Joy], which is the subject matter of 

Indictment CR3222 -- I don’t think that’s the cause number. I’m sorry.

THE COURT: 22322?
5

[THE STATE]: Yes, sir. Thank you.

[DEFENSE COUNSEL]: Your Honor, I think 38.37 does

purport to allow that. However, we’re going to object to that testimony 

in that I believe it violates the Equal Protection Clause of both the 

United States constitution and the State constitution. What 38.37 does, 

basically it was -- creates a subclass of citizens. It gives people who are

accused of sexual cases involving children less protection and less rights

in a criminal trial than it does a person, say, who is accused of a burglary 

of a habitation.

In a burglary of a habitation, the State’s not allowed to bring in 

during the guilt-innocence phase other burglary victims. This statute --

and that’s so that the State can have a -- the defense can have a fair trial. 

This statute specifically takes away rights that any other citizen would 

have if they were on trial for a crime in the state of Texas. So we make

that objection.

THE COURT: All right. Your objection is overruled at this time.

[THE STATE]: Thank you.

THE COURT: Are we ready to go?

[DEFENSE COUNSEL]: Can we have a running objection on

that so we don’t have to keep interrupting the process?

THE COURT: Yes, I understand your objection. You do not 

have to object in front of the jury. That -- that would be if --

[DEFENSE COUNSEL]: When they get to the extraneous

witness?

THE COURT: Yes, the sister of the alleged victim in this case.

[DEFENSE COUNSEL]: Thank you, sir.

After the jury was called into the courtroom, the trial court instructed the jury

in relevant part as follows: “Some testimony or exhibits may be introduced for a 
6

limited purpose. If that occurs, I will instruct you to consider the evidence only for 

that express limited purpose, and that is, again, what you would be obligated to do.”

During the guilt–innocence phase, the State offered testimony from Mother, 

the girls’ father, Nurse Fugate, Mae, Joy, and the girls’ therapists. Through these 

witnesses, the jury heard about Gary’s abuse of both Mae and Joy. Gary did not object 

to testimony regarding his conduct toward Joy on Rule 403 or 404 grounds, nor did 

he ask for a limiting instruction on that evidence.

Nurse Fugate testified that as part of her examinations, she took the girls’

patient histories from them. When Nurse Fugate started testifying about what Mae

had told her, Gary objected on hearsay grounds and argued that Rule 803(4)’s hearsay 

exception did not apply because Mae’s statements to Nurse Fugate were not made for 

medical diagnosis or treatment:

[Rule] 803(4) is an exception to the hearsay; however, it does not apply 

to this case. Our position is that these statements were elicited by the 

witness for the purpose of being used as evidence in a criminal case, 

which is exactly what they’re trying to do here now. This witness testified 

this morning that this was a nonacute case and that she was there to test 

this child and not to treat this child.

Therefore, since these statements were elicited not for the 

purposes of medical diagnosis and treatment, they are not -- it is hearsay.

The trial court overruled Gary’s objection but gave him a running objection as to both 

girls’ statements to Nurse Fugate. Nurse Fugate then testified about how Mae and Joy 

described for her Gary’s abuse and about her subsequent examination and testing of

the girls.
7

The jury charge did not include Gary’s requested limiting instruction. During 

the charge conference, Gary objected only to the submission of aggravated sexual 

assault—a person intentionally or knowingly causing a child’s sexual organ to contact 

another person’s mouth—on the grounds that the evidence was insufficient to 

support its submission to the jury.1 The trial court overruled the objection.

The jury found Gary guilty of continuous sexual abuse of a young child as 

charged in the indictment and, after hearing punishment evidence, assessed his 

punishment at life in prison. Gary has appealed.

IV. Gary’s Issues

On appeal, Gary raises seven issues:

1. The trial court erred by submitting a jury charge that failed to give a proper

limiting instruction on extraneous-offense evidence.

2. The trial court erred by failing to include Gary’s requested limiting 

instruction in the jury charge.

3. The incorrect jury charge egregiously harmed Gary.

4. The trial court erred by admitting inadmissible extraneous-offense evidence 

to the jury without first conducting the requisite Article 38.37 hearing.

1

Here, the indictment alleged aggravated sexual assault and indecency with a 

child as component offenses of the continuous-sexual-abuse-of-a-child charge. See 

Tex. Penal Code Ann. §§ 21.02(b), (c)(2), (c)(4), 21.11(a)(1), (c)(1), 22.021(a)(1)(B)(iii).

The jury charge instructed and charged the jury accordingly and submitted indecency

with a child as a lesser included offense of continuous sexual abuse of a child.
8 

5. The trial court erred by admitting extraneous-offense evidence because the 

danger of unfair prejudice substantially outweighed the evidence’s probative value.

6. The trial court erred by admitting Nurse Fugate’s hearsay testimony under 

Rule 803(4)’s hearsay exception for statements made for medical diagnosis or

treatment. 

7. The admission of Nurse Fugate’s hearsay testimony egregiously harmed 

Gary.

We will address Gary’s fourth and fifth issues first because doing so aids in our 

disposition of this appeal.

V. Admission of Extraneous-Offense Evidence

Gary’s fourth and fifth issues challenge the trial court’s admission of 

extraneous-offense evidence regarding his sexually abusing Joy under Code of 

Criminal Procedure Article 38.37. Within these two issues, he argues that the trial 

court abused its discretion by admitting evidence concerning his abusing Joy because 

(1) the trial court failed to hold the required Article 38.37 hearing to determine 

whether the evidence was adequate to support a jury finding that he committed the

separate offenses beyond a reasonable doubt; (2) the evidence’s probative value was 

substantially outweighed by the danger of unfair prejudice; and (3) the trial court 

failed to give a contemporaneous limiting instruction when the evidence was 

admitted. We address each of these arguments in turn.
9 

Rule 404(b)(1) disallows evidence of crimes, wrongs, or other acts solely to

prove a person’s character to show that the person acted in conformity with that 

character on a particular occasion.

2 Tex. R. Evid. 404(b)(1). Such extraneous-offense 

evidence is statutorily admissible, however, in continuous-abuse-of-a-young-child and 

indecency-with-a-child cases. See Tex. Code Crim. Proc. Ann. art. 38.37. In such cases, 

“[n]otwithstanding Rules 404 and 405,” evidence that a defendant has committed a

separate such sexual offense against a child may be admitted “for any bearing the 

evidence has on relevant matters, including the character of the defendant and acts 

performed in conformity with the character of the defendant.” Id. § 2(b). But before 

such evidence may be introduced, the trial judge must conduct a hearing outside the 

jury’s presence to determine whether the evidence is adequate to support a jury 

finding that the defendant committed the separate offense beyond a reasonable doubt.

Id. § 2-a.

Although the trial court here did not conduct the required hearing, Article

38.37’s hearing requirement is subject to general preservation requirements and can

thus be forfeited. See, e.g., Corporon v. State, 586 S.W.3d 550, 560 (Tex. App.—Austin 

2019, no pet.); Stephens v. State, Nos. 02-15-00046-CR, 02-15-00047-CR,

2016 WL 2586639, at *7 (Tex. App.—Fort Worth May 5, 2016, pet. ref’d) (mem. op., 

2

But this evidence may be admissible for other purposes, “such as proving 

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of 

mistake, or lack of accident.” Tex. R. Evid. 404(b)(2).
10

not designated for publication). To preserve a complaint for our review, a party must 

have presented to the trial court a timely request, objection, or motion sufficiently 

stating the specific grounds, if not apparent from the context, for the desired ruling.

Tex. R. App. P. 33.1(a)(1); Montelongo v. State, 623 S.W.3d 819, 822 (Tex. Crim. App. 

2021). Further, the party must obtain an express or implicit adverse trial-court ruling 

or object to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Dixon v. State, 

595 S.W.3d 216, 223 (Tex. Crim. App. 2020). 

Here, Gary failed to object to the lack of an Article 38.37 hearing. He has thus 

failed to preserve that complaint for our review. See, e.g., Corporon, 586 S.W.3d at 560; 

Stephens, 2016 WL 2586639, at *7. 

Next, Gary complains that the trial court abused its discretion by admitting the

extraneous-offense evidence because the danger of unfair prejudice substantially

outweighed the evidence’s probative value. See Tex. R. Evid. 403. Even if extraneousoffense evidence is relevant and admissible under Article 38.37, that evidence can be 

excluded under Rule 403 if the danger of unfair prejudice substantially outweighs the 

evidence’s probative value. See Wells v. State, 558 S.W.3d 661, 669 (Tex. App.—Fort 

Worth 2017, pet. ref’d); Martin v. State, 176 S.W.3d 887, 895 (Tex. App.—Fort Worth 

2005, no pet.); see also Tex. R. Evid. 403. A trial court must conduct a Rule 

403 balancing test upon a proper objection or request. See Belcher v. State, 474 S.W.3d

840, 847 (Tex. App.—Tyler 2015, no pet.); Sanders v. State, 255 S.W.3d 754, 760 (Tex.

App.—Fort Worth 2008, pet. ref’d). But, as the State notes, Gary failed to preserve 
11

this complaint by not objecting to the extraneous-offense evidence on Rule 

403 grounds.

To preserve error in the admission of evidence, a party generally must object 

each time the objectionable evidence is offered. Geuder v. State, 115 S.W.3d 11, 

13 (Tex. Crim. App. 2003); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 

2003); Clay v. State, 361 S.W.3d 762, 766 (Tex. App.—Fort Worth 2012, no pet.). Gary 

contends that although he did not object to the extraneous-offense evidence on Rule 

403 grounds when that evidence was offered at trial, he nevertheless preserved his 

403 complaint through (1) his written objection to the admission of the State’s 

extraneous-offense evidence; (2) his motion in limine; and (3) his objection to 

evidence admitted under Article 38.37 as violative of his Equal Protection rights. We 

disagree. 

Neither Gary’s written objection nor his motion in limine sufficed to preserve 

his Rule 403 complaint. First, the trial court never ruled expressly or implicitly on his 

written objection—which was based in part on Rule 403—so he was required to 

renew that objection when the extraneous-offense evidence was offered. Cf. Tex. R. 

Evid. 103(b) (“When the court hears a party’s objections outside the presence of the 

jury and rules that evidence is admissible, a party need not renew an objection to 

preserve a claim of error for appeal.”). Gary did not do so. Second, motions in limine 

do not preserve error. See Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008) 

(“A motion in limine . . . is a preliminary matter and normally preserves nothing for 
12

appellate review. For error to be preserved with regard to the subject of a motion in

limine, an objection must be made at the time the subject is raised during trial.” 

(citation and emphasis omitted)); Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. 

App. 2007). This is true whether the motion is granted or denied, see Griggs v. State, 

213 S.W.3d 923, 926 n.1 (Tex. Crim. App. 2007); Swilley v. State, 465 S.W.3d 789, 

795 (Tex. App.—Fort Worth 2015, no pet.), and the party must object when the 

evidence is offered at trial, Fuller, 253 S.W.3d at 232; Roberts, 220 S.W.3d at 533. Here, 

although the trial court granted Gary’s motion in limine, he did not object when the 

extraneous-offense evidence was offered at trial.

Like Gary’s written objection and limine motion, Gary’s objection to the State’s 

Article 38.37 evidence on Equal Protection grounds (and his running objection3 on 

that basis) was insufficient to preserve his Rule 403 complaint. An objection must be 

sufficiently specific to preserve a complaint for appellate review. See Tex. R. App. P. 

33.1(a)(1)(A). “The two main purposes of requiring a specific objection are to inform 

the trial judge of the basis of the objection so that he has an opportunity to rule on it 

and to allow opposing counsel to remedy the error.” Clark v. State, 365 S.W.3d 333, 

339 (Tex. Crim. App. 2012); see Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 

2009). Preservation does not require “magic language,” however, but turns only on 

3

A defendant’s obtaining a running objection is an exception to the 

contemporaneous-objection rule. Geuder, 115 S.W.3d at 13; Ethington v. State, 

819 S.W.2d 854, 858–59 (Tex. Crim. App. 1991).
13

whether the trial court understood the basis of the objection. Vasquez v. State, 

483 S.W.3d 550, 554 (Tex. Crim. App. 2016); State v. Rosseau, 396 S.W.3d 550, 

555 (Tex. Crim. App. 2013).

Furthermore, an objection preserves only the specific ground cited. Tex. R. 

App. P. 33.1(a)(1)(A); Tex. R. Evid. 103(a)(1)(B); Mosley v. State, 983 S.W.2d 249, 

265 (Tex. Crim. App. 1998) (op. on reh’g); see also Fierro v. State, 706 S.W.2d 310, 317–

18 (Tex. Crim. App. 1986) (holding that general objection is insufficient to apprise 

trial court of complaint urged and thus preserves nothing for review). And the 

complaint made on appeal must comport with the complaint made in the trial court 

or the error is forfeited. Clark, 365 S.W.3d at 339; Lovill v. State, 319 S.W.3d 687, 691–

92 (Tex. Crim. App. 2009) (“A complaint will not be preserved if the legal basis of the 

complaint raised on appeal varies from the complaint made at trial.”); Pena v. State, 

285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (“Whether a party’s particular complaint 

is preserved depends on whether the complaint on appeal comports with the 

complaint made at trial.”).

Here, Gary objected to the State’s Article 38.37 evidence regarding Joy as

follows:

Your Honor, I think 38.37 does purport to allow that [evidence]. 

However, we’re going to object to that testimony in that I believe it 

violates the Equal Protection Clause of both the United States 

constitution and the State constitution. What 38.37 does, basically it was 

-- creates a subclass of citizens. It gives people who are accused of sexual 

cases involving children less protection and less rights in a criminal trial 

than it does a person, say, who is accused of a burglary of a habitation.
14

In a burglary of a habitation, the State’s not allowed to bring in 

during the guilt-innocence phase other burglary victims. This statute --

and that’s so that the State can have a -- the defense can have a fair trial. 

This statute specifically takes away rights that any other citizen would 

have if they were on trial for a crime in the state of Texas. So we make 

that objection.

Gary’s objection was that Article 38.37 violated his Equal Protection rights 

under the United States and Texas Constitutions, not that the State’s Article 

38.37 evidence’s probative value was substantially outweighed by the danger of unfair 

prejudice. Even so, Gary argues that given that (1) the objection was made in the 

context of the State’s bringing up his limine motion—which raised Rule 403—and 

(2) his written Rule 403 objection stated that it was made to preserve his Equal 

Protection rights under the United States and Texas Constitutions, his objection 

sufficed to preserve his Rule 403 complaint. We cannot agree. The basis for Gary’s 

objection was the constitutionality of Article 38.37, which was insufficient to apprise 

the trial court that he was objecting on Rule 403 grounds. And he has not raised his

Equal Protection argument on appeal. Gary thus failed to preserve his Rule 

403 complaint for our review.

Finally, Gary notes that “[t]he relevant and substantive testimony of five out of 

seven of the State’s witnesses introduced and emphasized highly prejudicial testimony 

of the extraneous offense” and complains that the trial court thus erred by failing to 

give a contemporaneous limiting instruction each time the extraneous-offense 

evidence was admitted. Rule 105 provides that, when the trial court admits evidence 
15

that is admissible for one purpose but not for another, “the court, on request, must 

restrict the evidence to its proper scope and instruct the jury accordingly.” Tex. R. 

Evid. 105(a). A defendant must request an extraneous-offense limiting instruction 

under Rule 105 when the evidence is admitted during the guilt–innocence phase. 

Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007); Hammock v. State, 

46 S.W.3d 889, 893–94 (Tex. Crim. App. 2001). If a defendant does not, the evidence 

is admitted for all purposes. Delgado, 235 S.W.3d at 251; Hammock, 46 S.W.3d at 892, 

895; see also Tex. R. Evid. 105(a).

Any error in the admission of evidence that is admissible for one purpose, but 

not for the other, is preserved “only if the party requests the court to restrict the 

evidence to its proper scope and instruct the jury accordingly.” Tex. R. Evid.

105(b)(1). A pretrial request for a limiting instruction is insufficient to preserve a 

complaint that the trial court failed to give a limiting instruction. See Taylor v. State, 

No. 06-22-00063-CR, 2022 WL 16704396, at *4 n.8 (Tex. App.—Texarkana Nov. 4, 

2022, no pet.) (mem. op., not designated for publication); see also Reeves v. State, 

99 S.W.3d 657, 658–59 (Tex. App.—Waco 2003, pet. ref’d) (“There is nothing in the 

plain language of Rule 105 or the case law that requires the trial court, upon a pre-trial 

request, to recognize each instance of extraneous[-]offense evidence and deliver a

limiting instruction at each instance.”). Because Gary did not ask for a limiting 

instruction when the extraneous-offense evidence was admitted, he cannot complain
16

on appeal about the trial court’s not giving that instruction. See Tex. R. Evid.

105(b)(1). 

Because Gary failed to preserve his complaints regarding the trial court’s 

admission of extraneous-offense evidence regarding his abusing Joy, we overrule his 

fourth and fifth issues.

VI. The Jury Charge 

Gary’s first, second, and third issues challenge the trial court’s jury charge. In 

his first issue, Gary asserts that the trial court erred by submitting a jury charge that 

failed to give a proper limiting instruction on the extraneous-offense evidence. Gary 

complains in his second issue that the trial court erred by failing to include his 

requested limiting instruction in the charge. And finally, Gary contends in his third 

issue these errors caused him egregious harm.

We must review “all alleged jury-charge error . . . regardless of preservation in

the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In 

reviewing a jury charge, we first determine whether error occurred; if not, our analysis 

ends. Id. We address Gary’s first and second issues in turn, and because we conclude 

that no error occurred, we do not reach his third issue. See id.

Gary asserts in his first issue that, because indictments involving both girls were 

discussed at trial and because there was considerable evidence concerning his abusing 

Joy, the following abstract paragraphs of the jury charge misstated the law and created 

confusion: 
17

II.

A person commits the offense of Continuous Sexual Assault of a 

Young Child if, during a period that is 30 days or more in duration, the 

person commits two or more acts of sexual abuse, regardless of whether 

the acts of sexual abuse are committed against one or more victims . . . .

. . . .

V.

. . . .

You are further instructed that in order to find the defendant

guilty of the offense of continuous sexual abuse of a young child, you are 

not required to agree unanimously on which specific acts of sexual abuse 

were committed by the defendant or the exact date when those acts were 

committed. However, in order to find the defendant guilty of the offense of 

continuous abuse of a young child, you must unanimously agree that the defendant,

during a period that is 30 or more days in duration, on or about [the] 15th

day of April, 2016 through and including the 28th day of May, 2020 as 

charged in the indictment, committed two or more acts of sexual abuse.

. . . .

You are instructed that if there is any testimony before you in this 

case regarding the defendant having committed offenses, if any, other 

than the offenses alleged against him in the indictment in this case, you 

cannot consider said testimony for any purpose unless you find and 

believe beyond a reasonable doubt that the defendant committed such 

other offenses, if any were committed. [Emphases added.]

Gary argues that the instruction in section II “creates confusion, in particular 

because there was no instruction about how the jury could consider the extraneous 

offense.” He further argues that the jury could have interpreted the instruction in 

section V to mean that it “could rely on one or more of the discussed offense[s] 

against [Joy] to convict [him],” and that “[b]ecause there were no charges in the 
18

indictment for any victim other than [Mae], [the instruction] misstates the applicable 

law for these facts.”

But Gary’s argument ignores the application paragraphs, which provided:

Now bearing in mind the foregoing instructions, if you find and believe

from the evidence, beyond a reasonable doubt, that the defendant,

CHARLES RAY GARY, on or about the 15th day of April, 

2016 through and including the 28th day of May, 2020, in the County of 

Wise and State of Texas, did then and there, during [a] period that was 

30 or more days in duration, when the defendant was at least 17 years of 

age or older, knowingly commit two or more acts of sexual abuse against

[Mae], child younger than 14 years of age, said acts of sexual abuse being 

more fully described as follows:

1. Aggravated sexual assault of child by knowingly caus[ing] the 

sexual organ of [Mae], a child who was then and there younger than 

14 years of age and not the spouse of the defendant, to contact the 

mouth of the defendant.

2. Indecency with child by sexual contact with the intent to arouse 

or gratify the sexual desire of said defendant [by] engag[ing] in sexual 

contact with [Mae], a child younger than 17 years of age and not the 

spouse of the defendant, by touching the genitals of said [Mae] with his 

hand.

Unless you so find beyond a reasonable doubt. or if you have a 

reasonable doubt thereof, you will acquit the Defendant of the offense 

of Continuous Sexual Abuse of a Young Child and say by your verdict 

not guilty of Continuous Sexual Abuse of a Young Child. If you do not 

so find, or if you have a reasonable doubt thereof, you will next consider 

whether the Defendant is guilty of the lesser included offense of 

Indecency with a Child.

Now bearing in mind the foregoing instructions, if you find and 

believe from the evidence, beyond a reasonable doubt, that the 

defendant, CHARLES RAY GARY, on or about the 15th day of April,

2016 through and including the 28th day of May, 2020, in the County of 

Wise and State of Texas, did then and there, with the intent to arouse or 

gratify the sexual desire of said defendant, knowingly engage in sexual 
19

contact with [Mae] by touching the genitals of [Mae], a child younger 

than 17 years of age and not the spouse of the defendant then you will 

find the defendant guilty of the offense of Indecency With a Child 

Sexual Contact.

The application paragraphs make clear that the jury could find Gary guilty of 

only the offenses involving Mae. We thus conclude that the abstract paragraphs—

when considered in conjunction with the application paragraphs—do not misstate the 

law and are not confusing. See Dinkins v. State, 894 S.W.2d 330, 340 (Tex. Crim. App.

1995) (“When we review a charge for alleged error, we must examine the charge as a 

whole instead of a series of isolated and unrelated statements.”). We overrule Gary’s 

first issue.

Gary argues in his second issue that the trial court erred by failing to include his 

requested Rule 404 limiting instruction.

4 He alternatively asserts that although Article 

38.37 allows extraneous-offense evidence to be admitted for character and character4

Gary requested that the following Rule 404 limiting instruction be included in 

the charge:

The Defendant is on trial solely on the charge contained in the

indictment. The State has introduced in evidence an act or acts other 

than the one charged in the indictment. With reference to those other 

acts, you are instructed that said evidence was admitted only for the 

purpose of showing, if it does, (the specific purpose advocated by the

State) of the Defendant. You cannot consider said testimony for any 

purpose unless you find beyond a reasonable doubt that the Defendant 

committed such other act or acts, if any were committed. If you so find 

beyond a reasonable doubt, you can consider the evidence only for the 

purpose allowed. The evidence may not be considered to prove the 

character of the Defendant in order to show that he acted in conformity 

therewith on the occasion in question.
20

conformity purposes, the charge, (1) “at a minimum, should have emphasized to the 

jury that the evidence about the extraneous offense[s] could not itself be a basis for 

conviction, but only the indicted offenses” and (2) “should have tracked the language 

of [Article 38.37] and limited the jury to only consider[ing] the extraneous offense for

its bearing on relevant matters and clarified that the only offenses that could form the 

basis of the verdict were those in the indictment.” 

When, as here, the defendant does not timely request a limiting instruction, the 

evidence is admitted for all purposes. See Delgado, 235 S.W.3d at 251 (explaining that 

to hold otherwise would allow the jury to sit through most of the trial under the 

mistaken belief that certain evidence is admissible for all purposes when, in fact, it is 

not). A trial court does not err by failing or refusing to give a limiting instruction on 

extraneous-offense evidence in the jury charge during the guilt–innocence phase if the 

defendant did not request a limiting instruction when the trial court admitted the 

evidence. See id. (“[A] limiting instruction concerning the use of extraneous[-]offense 

evidence should be requested, and given, in the guilt-stage jury charge only if the 

defendant requested a limiting instruction at the time the evidence was first 

admitted.”); Gunter v. State, 327 S.W.3d 797, 802 (Tex. App.—Fort Worth 2010, no 

pet.) (applying Delgado to hold that appellant forfeited his complaint on appeal).

As noted, Gary did not request a limiting instruction on the extraneous-offense 

evidence regarding Joy when it was admitted. The evidence was thus admitted for all 

purposes, and the trial court was not obligated to include any limiting instruction in 
21

the guilt–innocence charge. See Delgado, 235 S.W.3d at 251; see also Williams v. State, 

273 S.W.3d 200, 230 (Tex. Crim. App. 2008) (“A failure to request a limiting 

instruction at the time evidence is presented renders the evidence admissible for all 

purposes and relieves the trial judge of any obligation to include a limiting instruction 

in the jury charge.”). Accordingly, we conclude that the trial court did not err by not 

including Gary’s requested limiting instruction or any instruction limiting the purposes 

for which the jury could consider the evidence. We thus overrule Gary’s second issue.

Because we have concluded that there was no charge error, we need not 

address Gary’s third issue. See Kirsch, 357 S.W.3d at 649; see also Tex. R. App. P. 47.1.

VII. Admission of Nurse Fugate’s Hearsay Testimony

Gary’s sixth and seventh issues challenge the trial court’s admission of Nurse

Fugate’s hearsay testimony regarding Mae’s and Joy’s patient histories, which the State

argued was admissible under Rule 803(4)’s medical-diagnosis-or-treatment exception 

to the hearsay rule. Gary argues in his sixth issue that because these statements were 

inadmissible under this hearsay exception, the trial court erred by overruling his 

hearsay objection and by allowing Nurse Fugate, a SANE, to testify about what Mae 

and Joy had told her. Gary complains in his seventh issue that the trial court’s 

admission of this inadmissible evidence caused him egregious harm.

A. Standard of review

We review a trial court’s evidentiary ruling on a hearsay objection for an abuse 

of discretion. See, e.g., Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003); 
22

Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994). We will not reverse an 

evidentiary ruling unless it is outside the zone of reasonable disagreement. Tillman v.

State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). If the ruling is correct under any 

applicable theory of law, we will affirm it regardless of the trial court’s reason for the 

ruling. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016).

B. Admissibility of a child’s hearsay statements to a SANE

Rule 803(4) allows statements “made for—and . . . reasonably pertinent to—

medical diagnosis or treatment” that “describe[ ] medical history; past or present 

symptoms or sensations; their inception; or their general cause” to be admitted into 

evidence even though they are hearsay. Tex. R. Evid. 803(4). For evidence to be

admissible under this exception, the proponent must show (1) that the declarant “was 

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

and that proper diagnosis or treatment depended upon the veracity of the statements” 

and (2) “that the statements are pertinent to diagnosis or treatment, i.e., that it was 

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

declarant.” Lumsden v. State, 564 S.W.3d 858, 883 (Tex. App.—Fort Worth 2018, pet. 

ref’d) (citing Taylor v. State, 268 S.W.3d 571, 588–89, 591 (Tex. Crim. App. 2008)).

In cases involving medical diagnosis and treatment—as opposed to mentalhealth treatment and therapy—courts generally presume that “children of a sufficient 

age or apparent maturity” will understand that the medical provider’s questions are 

designed to elicit accurate information and that veracity will serve their best interest.
23

Taylor, 268 S.W.3d at 589. In applying the test, courts thus generally review the record 

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

burden is on the proponent of the hearsay to show that the Rule 803(4) exception 

applies.” Id. Absent such negative evidence, the Texas Court of Criminal Appeals 

does “not require[ ] the proponent of statements to a SANE to affirmatively 

demonstrate that the declarant was aware of the purpose of the statements and the 

need for veracity.” Lumsden, 564 S.W.3d at 884; see Taylor, 268 S.W.3d at 589. 

C. Analysis

 Gary attacks both of Rule 803(4)’s admissibility requirements. First, he asserts 

that the record negates the presumption that the girls understood the need for 

truthfulness because of Mae’s and Joy’s ages (seven and eight years old, respectively); 

because the girls may have been repeating the description of events that Mother gave 

to Nurse Fugate; and because there is no evidence that Nurse Fugate told the girls

“the purpose of the examination or impressed upon them the importance to tell the

truth.” Second, he contends that the girls’ statements were not pertinent to medical 

diagnosis or treatment and were “solicited for the purposes of testifying at trial” 

because Nurse Fugate’s testing and treatment did not rely on the girls’ statements. 

At trial, Nurse Fugate explained the sexual-assault-examination procedure. 

When a child and parent come into the clinic, Nurse Fugate “usually show[s] them 

around.” She talks to the parent first to get the child’s medical history and to “go over 

what they know about what’s happened.” She then meets with the child alone to get a
24

patient history, during which time she talks to the child and “go[es] into 

what’s . . . gone on” and “why they’re here today.” According to Nurse Fugate, the 

patient history’s purpose is for medical diagnosis and proper treatment, regardless of 

whether the child is acute or nonacute, and the history “helps [her] determine what 

[she’s] looking for, what [she] needs to test, [and] what to do, basically.” Nurse Fugate 

then explains to the child that she is going to do a checkup; performs a “head-to-toe 

checkup” on the child; examines the child’s anal and genital areas looking for any 

signs of infection, injury, or healed injury; and performs any necessary testing. 

The record here does not reflect whether the girls were present when Nurse 

Fugate talked to Mother. Nurse Fugate testified that when she talked to the girls 

alone, she explained to both of them that they were there for a medical checkup and 

diagnosis and treatment. When Nurse Fugate asked Mae why Mae was there, she

responded, “because of the inappropriate things that happened” and “inappropriate 

touching,” and then, after additional questioning from Nurse Fugate, Mae described 

Gary’s abuse and where and when it had happened. Joy similarly responded to Nurse 

Fugate’s questions: Joy was there “because of [Gary], but we don’t see him anymore,” 

and when asked what happened, Joy recounted Gary’s abuse. Nothing in the record

negates Mae’s or Joy’s understanding that the purpose of their statements was for

medical diagnosis or treatment and that they needed to be truthful. See Beheler v. State, 

3 S.W.3d 182, 188–89 (Tex. App.—Fort Worth 1999, pet. ref’d) (stating that “there is 

no requirement that a witness expressly state that the hearsay declarant recognized the 
25

need to be truthful in her statements for the medical[-]treatment exception to apply” 

and holding that evidence was sufficient to support conclusion that seven-year-old 

child understood the need for veracity during SANE exam where process was 

explained and child was interviewed alone, child knew why she was there, and SANE

testified that she interviewed child for purposes of medical exam); see also Westbrook v.

State, No. 10-19-00119-CR, 2021 WL 3773474, at *9–10 (Tex. App.—Waco Aug. 25, 

2021, pet. ref’d) (mem. op., not designated for publication) (concluding that nothing 

in the record supported conclusion that eight-year-old child was unaware that the 

purpose of SANE’s questions was to provide medical treatment or diagnosis or was 

unaware of the necessity to be truthful where child described incidents of sexual abuse

after SANE explained who SANE was and the purpose of the visit (a medical 

examination), obtained a medical history from the child, and asked the child if she 

knew why she was there). We therefore conclude that the girls’ statements to Nurse 

Fugate satisfy the admissibility test’s first requirement. 

We similarly conclude that the girl’s statements satisfy the second requirement: 

the statements were pertinent to medical diagnosis or treatment. See Lumsden, 

564 S.W.3d at 883. We disagree with Gary’s assertion that the girls’ histories were 

taken solely for use in court and weren’t pertinent for treatment or diagnosis. Nurse 

Fugate agreed that the “core principle” for a medical provider was to take a patient 

history and testified that “[w]ithout a history, we don’t know what we’re dealing

with.” Although Nurse Fugate testified about her general exam procedures, she 
26

testified as follows about the purpose of taking a patient history from both girls in this

case: 

[State]: Specifically, what was the purpose of taking a history from 

both of those young ladies?

[Nurse Fugate]: So that I would be able to figure out what I 

needed to do and come up with a game plan for diagnosis and treatment.

Q. All right. So your purpose in asking for a history was to obtain 

the proper treatment or course of treatment for both children?

A. Yes.

When the trial court indicated that it wanted to know what Nurse Fugate did in 

this case, the following exchange occurred: 

Q. [By the State] So in this particular case, then, you took a 

history; is that correct?

A. I did.

Q. After you took a history, then what did you do next?

A. So after the history, then I formulate what I’m going to do.

Q. And what did you do?

A. So I do the checkup based on the contact that they describe. I 

did testing for gonorrhea and chlamydia.

. . . .

Q. . . . And so based on their disclosures, that’s where you 

looked?

A. Yes.

Q. All right. And so specifically were you looking for a sexually 

transmitted disease -- gonorrhea and chlamydia?
27

A. I was.

. . . .

Q. All right. Did you do any other testing, any other blood work 

on these particular girls?

A. No. Based on the contact that they told me, that was the one 

that we needed to do.

Nurse Fugate additionally testified that she performed a “head-to-toe checkup” 

on each girl and then examined and photographed each girl’s genital and anal areas. 

Neither girl had any physical injuries, healed injuries, or obvious infections. The lack 

of physical injuries did not surprise Nurse Fugate because of the contact the girls had 

described. And because the girls did not test positive for gonorrhea or chlamydia, 

there was no reason to treat them with medication. On this record, we conclude that

it was reasonable for the trial court to conclude that the girls’ statements to Nurse 

Fugate were “pertinent to diagnosis or treatment, i.e., that it was reasonable for the 

care provider to rely on the statements in diagnosing or treating the declarant.” 

Lumsden, 564 S.W.3d at 883. 

 Having concluded that the trial court could have reasonably concluded that the

challenged hearsay statements fall within Rule 803(4)’s hearsay exception, we hold that 

the trial court did not abuse its discretion by admitting them. Accordingly, we overrule 

Gary’s sixth issue, and we thus do not address his seventh issue. See Tex. R. App. P. 

47.1.
28

VIII. Conclusion

Having overruled Gary’s dispositive issues, we affirm the trial court’s judgment.

/s/ Elizabeth Kerr

Elizabeth Kerr

Justice 

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: April 6, 2023