NUMBER

13-13-00111-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

RONALD BLAKE FEARS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 138th District Court

of Cameron County, Texas.

OPINION

Before Justices Rodriguez, Garza, and Longoria

Opinion by Justice Longoria

By fifteen issues, which we have reordered, appellant Ronald Blake Fears 

challenges his convictions for sexual abuse of a child (Count I), sexual assault of a child 
2

(Count III),1 and indecency with a child by contact (Counts IV–VI). See TEX. PENAL CODE 

ANN. §§ 21.02, 22.011(a)(2), 21.11(a)(1) (West, Westlaw through 2013 3d C.S.). We 

affirm. 

I. BACKGROUND

A. Initial Statements

During the weekend of October 2, 2011, C.T.,2the minor complainant in this case, 

was sleeping over at the home of her friend Chesney St. John (Chesney) and helping to 

babysit Chesney’s younger siblings. At the time, Chesney was sixteen years old and C.T. 

was fourteen years old.3 C.T. confided to Chesney that C.T. needed help telling 

something to C.T.’s mother, which C.T. evidently found difficult to discuss. Chesney 

testified that C.T. typed a message into the text message function of her phone, showed 

Chesney what she wished to tell her mother, and then erased it. According to Chesney, 

the message revealed that C.T. was being sexually abused by appellant, her stepfather. 

Chesney further testified that she learned that the abuse began when C.T. was eight 

years old. Chesney called her parents, who returned to the house. Chesney first 

repeated some of C.T.’s statements to Chesney’s parents because C.T. was crying too 

much to speak.

Chesney’s mother, Natalie, questioned C.T. after Chesney finished speaking and 

testified to C.T.’s responses at trial.

4

 Natalie testified that C.T. stated that appellant forced 

 

1 The State abandoned Count II, aggravated sexual assault of a child, after the close of its case. 

2 C.T. testified under this pseudonym in the trial court. We will continue to refer to her by it in an 

effort to protect her privacy.

3 Chesney was eighteen years old at the time of the trial.

4 The trial court certified Natalie as the outcry witness under article 38.072 because she was the 

first person older than eighteen years to whom C.T. made a statement about the abuse. See TEX. CODE 
3

her to perform oral sex on him and appellant performed oral sex on C.T. The most recent

abuse occurred one week earlier. C.T. told her that the abuse occurred in her parents’ 

bedroom on multiple occasions, and on one occasion, appellant attempted to vaginally 

penetrate her as she lay naked on the bed but stopped after she curled into a fetal position 

and began to cry. Natalie called the San Benito Police Department; she and Chesney 

accompanied C.T. to the police station and waited while C.T. gave a statement to Officer 

Carlos Andrade. 

B. C.T.’s Statement to Officer Andrade

Officer Andrade testified that he learned from his interview with C.T. that appellant 

“was only touching [C.T.’s] private areas” and that he had not penetrated her with his 

fingers or forced her to perform oral sex. However, Officer Andrade further testified that 

he did not determine before conducting the interview whether C.T. understood the terms 

“penetration” and “oral sex.” Chesney testified that C.T. did not know the meaning of the 

term “oral sex” until she and C.T. spoke after C.T. gave a statement to Andrade. Chesney 

testified that after explaining the term, she believed that appellant had forced C.T. to 

perform oral sex. Andrade also testified that C.T. confirmed that the abuse began when 

she was eight years old. Andrade testified that he felt that there was enough evidence to 

determine that a crime had been committed and contacted Child Protective Services 

(CPS). 

C. Interview with Francisco Lopez

CPS Investigator Francisco Lopez testified on direct examination that he was 

assigned to the case after CPS received reports from Chesney and Natalie and the San 

 

CRIM. PROC. ANN. art. 38.072, § 2(a)(3) (West, Westlaw through 2013 3d C.S.).
4

Benito Police. On Sunday, October 3, 2011 (the day after C.T. first spoke to Chesney),

Lopez and another CPS investigator went to Chesney and Natalie’s home to interview 

C.T. Lopez testified that they would normally bring a child complainant for a forensic

interview at Maggie’s House, the Children’s Advocacy Center, but it was closed that day. 

Lopez personally interviewed C.T. and made an audio recording of the interview, which 

we will refer to as the “Lopez Recording.” 

During the interview, C.T. confirmed that the abuse started when she was eight 

years old, that she had recently learned the meaning of the term “oral sex” from Chesney,

that appellant had forced her to perform oral sex, and that appellant had performed oral 

sex on her. C.T. clarified to Lopez that she told Officer Andrade that he did not force her 

to perform oral sex because she did not know the meaning of the term until she spoke to 

Chesney after giving the statement. C.T. also described the specific appearance of 

appellant’s genitalia, including whether his pubic hair was shaved or unshaved, that he 

had pimples on his thighs, and that she sometimes saw “red dots” on his genital area. 

Lopez questioned C.T.’s mother when she arrived to pick up C.T. and testified that C.T.’s 

mother gave a similar description of appellant’s genitalia. 

Immediately prior to Lopez’s testimony, appellant’s counsel orally moved for a 

continuance to review any documents prepared by Lopez during his investigation

because the documents “could be pretty voluminous.” The trial court overruled the motion 

as premature. At the beginning of cross-examination by appellant’s counsel, Lopez 

confirmed that he had prepared an eight-page report of his investigation, that he used a 

copy of the report to refresh his memory prior to testifying, and that he had not provided 

the report to the State, the trial court, or appellant because it was confidential by law. See
5

TEX. FAM. CODE ANN. § 261.201 (West, Westlaw through 2013 3d C.S.). Appellant’s 

counsel moved under Texas Rule of Evidence 615 that the court order Lopez to turn over 

the report and orally moved for a continuance to give him time to review the report before 

using it to cross-examine Lopez. See TEX. R. EVID. 615. The trial judge denied both 

motions. At the end of Lopez’s testimony, appellant’s counsel again requested the report. 

Appellant’s counsel also filed a written motion for continuance and a motion for disclosure 

of confidential records. The trial judge never explicitly ruled on the motions but carried 

them through the trial. The trial judge also ordered the State to tender the CPS files 

generated in the case to the court under seal. After reviewing the records in camera, the 

trial judge disclosed a copy of Lopez’s eight-page report to the defense and read two 

additional pages into the record.

D. Lopez’s Interview with B.F.

Lopez briefly interviewed B.F., C.T.’s younger sister, on the same day as his 

original interview with C.T. Lopez also made an audio recording of that interview. At trial, 

the State called B.F. as a witness. During the State’s direct examination, B.F. denied that 

she had ever told Lopez that appellant and C.T. were alone “many times” in her parents’ 

room with the door closed. The State offered into evidence a portion of the audio 

recording of Lopez’s interview with B.F. that was inconsistent with this testimony. See 

TEX. R. EVID. 613. The trial court judge admitted that portion of the statement into 

evidence over appellant’s objections. At the end of the State’s examination, B.F. admitted 

that her mother had told her what to say during her trial testimony.

E. C.T.’s Interview at Maggie’s House

The day after the initial interviews, Lopez took C.T. for a forensic interview at 
6

Maggie’s House. Lopez described C.T.’s interview, which we discuss in detail below, as 

containing more details, but consistent with C.T.’s prior statements. Following the 

interview, Detective Manuel Cisneros decided to file charges against appellant.

F. C.T.’s Testimony 

C.T. testified on direct examination that the first incident of abuse occurred when 

she was eight years old and appellant touched the surface of her vagina with his fingers. 

She remembered at least one other incident of appellant doing similar acts around the 

same time period. C.T. testified that the abuse escalated in “stages.” On subsequent 

occasions, appellant would “play with my nipples or my boobs. He’d suck on them or he’d 

put his mouth to my vagina.” C.T. further testified that appellant also forced her to perform 

oral sex on him more than ten times. She testified that appellant actually tried to insert 

his penis into her vagina on two occasions, in contrast to the single incident that she 

described to Natalie, Chesney, Officer Andrade, Lopez, and the interviewer at Maggie’s 

House. C.T. explained that at the time of her initial outcry, her “nerves were running very 

thin, and like, I was not thinking fully.”

C.T. mentioned during direct examination that she gave a statement to Lopez prior 

to the interview at Maggie’s House. At the end of the State’s direct examination, appellant 

objected and requested that the court disclose any statements C.T. gave to CPS. After 

an in camera review of the sealed CPS files, the trial judge disclosed the existence of two 

audio files of C.T.’s interview with Lopez to all parties. The trial judge denied appellant’s 

motion for continuance but gave appellant’s counsel time to listen to the recordings before 

proceeding with the trial.

5

 The State moved on redirect to introduce a portion of the video 

 

5 The audio files run approximately twenty-five minutes in total. 
7

recording of C.T.’s interview at Maggie’s House. The State argued that it was admissible 

to counteract a false impression of C.T.’s tendency to lie that was left in the jurors’ minds 

by counsel’s cross-examination. See TEX. R. EVID. 801(e)(1)(c). The trial court admitted 

that portion of the video over appellant’s objections.

G. Verdict and Sentence

Following the close of evidence, the jury returned verdicts of guilty on all pending 

counts. Appellant opted for the trial judge to assess his punishment. The trial judge 

assessed concurrent sentences of fifty years’ imprisonment on Count I and twenty years’ 

imprisonment on each of the remaining counts. Appellant filed a motion for new trial, and 

the trial court denied it by written order. Appellant timely filed a notice of appeal.

II. MOTIONS FOR CONTINUANCE

By his first issue, appellant argues that the trial court erred by denying his three 

motions for continuance: first, immediately prior to Lopez’s testimony; second, at the 

beginning of his counsel’s cross-examination of Lopez; and third, at the end of his crossexamination of Lopez. We disagree. 

A. Standard of Review and Applicable Law

We review the trial court’s ruling on a motion for continuance for abuse of 

discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). Requests for a 

continuance after the trial has begun are expressly governed by the code of criminal 

procedure, which provides:

A continuance or postponement may be granted on the motion of the State 

or defendant after the trial has begun, when it is made to appear to the 

satisfaction of the court that by some unexpected occurrence since the trial 

began, which no reasonable diligence could have anticipated, the applicant 

is so taken by surprise that a fair trial cannot be had.
8

TEX. CODE CRIM. PROC. ANN. art. 29.13 (West, Westlaw through 2013 3d C.S.). The 

motion must be in writing and fully state sufficient cause for the continuance. Id. art. 29.03 

(West, Westlaw through 2013 3d C.S.). The motion must also be sworn to “by a person 

having personal knowledge of the facts relied on for the continuance.” Id. art. 29.08 

(West, Westlaw through 2013 3d C.S.); see Williams v. State, 356 S.W.3d 508, 521 (Tex. 

App.—Texarkana 2011, pet. ref'd). A motion for continuance that is not in writing and not 

sworn preserves nothing for review. Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. 

App. 1999).

B. Discussion

Appellant’s first and third motions were unwritten and unsworn and so did not 

preserve error for our review. See id. Appellant’s second motion, although in writing and 

sworn to by counsel, was insufficient to demonstrate that a continuance was warranted. 

A motion for continuance must cite an unexpected occurrence that the applicant’s counsel 

could not have anticipated by reasonable diligence and show that the “applicant is so 

taken by surprise that a fair trial cannot be had.” TEX. CODE CRIM. PROC. ANN. art. 29.13. 

Appellant’s motion cited the reason for the request, to review the CPS records, but did 

not attempt to show that the existence of the audio recording could not have been

anticipated by reasonable diligence. The motion also does not explain why a fair trial 

could not be had without the continuance. See id; Barney v. State, 698 S.W.2d 114, 127 

(Tex. Crim. App. 1985) (en banc) (holding that, under article 29.13, “it must appear to the 

satisfaction of the court that ‘a fair trial cannot be had’ before a continuance or 

postponement is warranted”). Consequently, the trial court did not abuse its discretion in 

denying the continuance. See Gallo, 239 S.W.3d at 764. We overrule appellant’s first 
9

issue. 

III. OBJECTION UNDER TEXAS RULE OF EVIDENCE 615

By his second issue, appellant argues that the trial court erred when it refused his 

motion under Texas Rule of Evidence 615 to direct the State to produce a copy of Lopez’s 

report to assist appellant’s counsel in cross-examination. We disagree.

A. Applicable Law and Standard of Review

The common-law Gaskin rule provided that, when a State’s witness made a report 

or gave a statement prior to testifying, the defendant is entitled on timely request to 

inspect the report or statement and to use it for purposes of cross-examination and 

impeachment. Cullen v. State, 719 S.W.2d 195, 196 (Tex. Crim. App. 1986) (en banc)

(citing Gaskin v. State, 172 TEX. CRIM. 7, 353 S.W.2d 467 (1961)). This rule is now 

codified in Texas Rule of Evidence 615, which provides:

After a witness other than the defendant has testified on direct examination, 

the court, on motion of a party who did not call the witness, shall order the 

attorney for the state or the defendant and defendant's attorney, as the case 

may be, to produce, for the examination and use of the moving party, any 

statement of the witness that is in their possession and that relates to the 

subject matter concerning which the witness has testified.

TEX. R. EVID. 615. The rule defines a “statement” as “a written statement made by the 

witness that is signed or otherwise adopted or approved by the witness.” Id. R. 615(f)(1). 

If the defendant timely moves for production of material covered by Texas Rule of 

Evidence 615, it is error for the trial court to deny production and access to it. Keith v. 

State, 916 S.W.2d 602, 606 (Tex. App.—Amarillo 1996, no pet.).

Section 261.201 of the Texas Family Code provides that “reports,” among other 

materials, “used or developed” in an investigation of a report of child abuse or neglect

made under chapter 261 are confidential and may not be released. TEX. FAM. CODE ANN.
10

§ 261.201(a). A court may order the release of information made confidential under 

section 261.201 if the following conditions are met: (1) a motion is filed requesting the 

release of the information; (2) notice of hearing has been served on the investigating 

agency and all interested parties; and (3) the court determines after the hearing and an 

in camera review of the requested information that disclosure of the requested information 

is essential to the administration of justice and is not likely to threaten the life or safety of 

(i) a child complainant, (ii) a person who made a report of alleged abuse, or (iii) any person 

who participated in an investigation of abuse or neglect or who provided care for the child. 

Id. § 261.201(b).

B. Discussion

Appellant asserts that the trial court erred by refusing to order production of 

Lopez’s report at the beginning of his trial counsel’s cross-examination of Lopez as 

expressly required by the rule. See TEX. R. EVID. 615. The State responds that the trial 

court did not err by denying the motion because Lopez’s report was protected under 

section 261.201 of the Texas Family Code, and appellant did not follow the proper 

procedure for gaining access to information protected by that section. See id.; see also 

TEX. FAM. CODE ANN. § 261.201. We agree with the State. 

Appellant’s counsel moved for disclosure of the report under Texas Rule of 

Evidence 615, but he did not mention Texas Family Code section 261.201 or attempt to 

comply with the procedure for releasing information classified as confidential under that 

section. Because appellant did not attempt to comply at that time with the procedures for 

releasing it,6 we hold the trial court did not err in overruling appellant’s objection under 

 

6 Appellant’s counsel later filed a Motion for Disclosure of Confidential Records seeking access to 

the entire CPS casefile, which we discuss below. However, appellant does not mention that motion under 
11

Texas Rule of Evidence 615. See TEX. R. EVID. 615. We overrule appellant’s second 

issue. 

IV. BRADY VIOLATIONS

Appellant asserts in his third issue that the State violated its duty to disclose 

favorable and material information to appellant. See Brady v. Maryland, 373 U.S. 83, 87 

(1963). We disagree. 

A. Applicable Law

Under United States Supreme Court precedent beginning with Brady, the State is 

required to disclose evidence known to it that is favorable or material to a defendant’s 

guilt or punishment, whether or not the defendant requests it. Strickler v. Greene, 527

U.S. 263, 280 (1999). This duty encompasses both impeachment as well as exculpatory 

evidence. Id. (citing United States v. Bagley, 473 U.S. 667, 676 (1985)). The good or 

bad faith of the prosecution is irrelevant. Brady, 373 U.S. at 87. 

A defendant must show the following requirements to establish a Brady violation: 

(1) the State suppressed evidence; (2) the suppressed evidence is favorable to the 

defendant; and (3) the suppressed evidence is material. Stickler, 527 U.S. at 281–82; 

accord Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006). “Favorable” evidence 

for these purposes is any evidence that, if disclosed and used effectively, “may make the 

difference between conviction and acquittal.” Harm, 183 S.W.3d at 406. Evidence is 

“material” for Brady purposes “only if there is a reasonable probability that, had the 

evidence been disclosed to the defense, the result of the proceeding would have been 

different.” Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008) (internal 

 

this issue.
12

quotations omitted). A reasonable probability is one that is sufficient to undermine 

confidence in the outcome. Id. 

The materiality prong incorporates a requirement that the defendant is prejudiced 

by the State’s failure to disclose the evidence. Harm, 183 S.W.3d at 406. When 

information is disclosed mid-trial, the prejudice inquiry involves determining whether the 

disclosure came in time to make effective use of it at trial. Little v. State, 991 S.W.2d 864, 

866 (Tex. Crim. App. 1999). “If the defendant received the material in time to use it 

effectively at trial, his conviction should not be reversed just because it was not disclosed 

as early as it might have and should have been.” Id. 

B. Discussion

Appellant asserts that the State’s failure to disclose Lopez’s report and the Lopez 

Recording meets the second prong of the test because “C.T. had given numerous 

statements and her credibility was important at the early stage of the trial.” Appellant 

reasons that Lopez’s report and the Lopez Recording show a “definite distinction” 

between the content of C.T.’s original outcry statements and her statements during the 

interview at Maggie’s House. Appellant argues that he should have had access to the 

statements “to sufficiently develop cross-examination of C.T.”7

We first address the second prong, the requirement that the suppressed evidence 

was favorable. See Harm, 183 S.W.3d at 406. Lopez’s report and the recordings of the 

Lopez interview do reveal some inconsistencies between C.T.’s original statements to 

 

7 Appellant also argues that the late disclosure of the audio recording of B.F.’s interview with Lopez 

was Brady error. We hold that appellant has waived error, if any, by failing to request a continuance when 

the State moved to introduce the recording. See Perez v. State, 414 S.W.3d 784, 790 (Tex. App.—Houston 

[1st Dist.] 2013, no pet.) (holding that failure to request a continuance waives Brady error); Young v. State, 

183 S.W.3d 699, 706 (Tex. App.—Tyler 2005, pet. ref'd) (same).
13

Natalie and Chesney, Office Andrade, Lopez, and her statement at Maggie’s House. For 

example, on the Lopez Recording, C.T. describes an end date for the abuse closer to the 

date of her outcry than the end date in her statement to the interviewer at Maggie’s House. 

C.T. also told the Maggie’s House interviewer that appellant forced her to perform oral 

sex on him more than five times, but did not give a specific number of times to Chesney 

or Natalie. C.T. also told the Maggie’s House interviewer that appellant attempted to 

vaginally penetrate her twice, while she told Lopez that it occurred only once. However, 

the majority of C.T.’s statements on the Lopez Recording are consistent with C.T.’s other 

statements; she consistently described the type of acts appellant would force her to 

perform and the type of acts appellant would perform on her. C.T.’s statements are also 

consistent as to the abuse escalating in stages from vaginal touching, to forcing C.T. to 

perform oral sex and receiving oral sex from appellant, to one or more incidents where 

appellant allegedly tried to penetrate her vaginally with his penis. Moreover, during the 

Lopez Recording, C.T. explained some of the discrepancies: she told Officer Andrade 

that appellant did not force her to perform oral sex because she did not know the meaning 

of the term at the time of the interview. Appellant also asserts that C.T.’s description in 

the Lopez Recording of the identifying features of appellant’s genital area “became an 

issue relating to [C.T.’s] credibility,” but Lopez testified that the description of appellant’s 

genital area given by C.T.’s mother was similar to C.T.’s statement. The Lopez Recording 

and Lopez’s report, if anything, do more to demonstrate the consistency of C.T.’s 

statements than to cast doubt on them. 

Based on the foregoing, we conclude that the evidence was not favorable to 

appellant. Even assuming, arguendo, that the second prong is met, we conclude that the 
14

evidence is not material because there is not a reasonable probability that the result of 

the trial would have been different if the evidence had been disclosed earlier. See Ex 

parte Reed, 271 S.W.3d at 727. When Brady evidence is disclosed during the trial, we 

inquire whether the defendant was able to effectively use the material despite the delay. 

See Little, 991 S.W.2d at 866. Appellant argues that “it is unclear” how his counsel was 

supposed to use Lopez’s report, given that it was only provided at the conclusion of 

Lopez’s testimony. In fact, after the end of his cross-examination and before recessing 

for the day, the judge asked for Lopez’s phone number and informed him that he was not 

released from his subpoena and subject to recall the next day. The trial court expressly 

afforded appellant’s counsel an opportunity to continue cross-examination of Lopez the 

next day on the basis of the report. If appellant’s counsel wanted to use the report to 

effectively cross-examine Lopez, he had the opportunity to do so. Appellant does not 

explain why he did not take the opportunity to recall and cross-examine Lopez the next 

morning, or why he needed to use the information earlier in the cross-examination for it 

to be effective.

Appellant also argues that the audio recordings of C.T.’s interview with Lopez were 

material. When denying appellant’s third request for a continuance, this time on the basis 

of a need to review the recordings, the trial judge stated on the record that there was no 

substantive detail in the Lopez Recording that was not included in Lopez’s report, which 

had been disclosed earlier in the trial.8 After reviewing both pieces of evidence, we agree 

with the trial judge. The substance of the report is the same as the substance of the 

Lopez Recording. Moreover, despite the delayed disclosure, appellant’s counsel’s cross-

 

8 Two witnesses testified between the disclosure of the report and the beginning of the State’s 

direct examination of C.T.
15

examination of C.T. fills over seventy pages of the reporter’s record and dwells almost 

entirely on inconsistencies in C.T.’s multiple statements. Appellant does not explain how 

a continuance would have enabled his counsel to more effectively use the recordings in 

his cross-examination of C.T.

In sum, we conclude that appellant is unable to demonstrate that he was 

prejudiced by the late disclosure of Lopez’s report and the Lopez Recording. Appellant 

is thus unable to demonstrate the third prong of a Brady claim. See Little, 991 S.W.2d at 

866. We overrule appellant’s third issue.

V. BRADY AND SECTION 261.201

By his fourth issue, appellant questions the relationship between the State’s duty 

to disclose all favorable and material information under Brady and the confidentiality 

requirements of Texas Family Code section 261.201. We understand appellant as 

asserting two arguments under this issue. Appellant’s first argument is that:

The balancing test as to whether CPS documents should be turned over to 

the Appellant should not have been placed on the trial court or this Court of 

Appeals. The State of Texas should play from a point of strength and 

provide every defendant with the information they intend to use to convict 

them. The State hid behind the premise that CPS records are privileged 

information.

Appellant’s second argument is that the trial court abused its discretion by not timely 

disclosing the evidence that was the subject of his third issue. 

We reject appellant’s argument that it was inappropriate for the trial court to 

conduct the Texas Family Code section 261.201(b)(3) balancing test to determine 

whether to disclose material that appellant viewed as Brady evidence. The conflict that 

can arise between the State’s need to keep information related to child abuse 

investigations confidential with a defendant’s need for a fair trial is well recognized. The 
16

United States Supreme Court confronted the problem in Pennsylvania v. Ritchie, where

the Supreme Court of Pennsylvania held that the appropriate method of assessing a claim 

that information made confidential by statute is material under Brady “was to grant [the 

defendant] full access to the disputed information, regardless of the State’s interest in 

confidentiality.” 480 U.S. 39, 59 (1987). The United States Supreme Court rejected that 

conclusion, holding that the defendant’s interest in “ensuring a fair trial can be protected

fully by requiring that the [state child protection agency] files be submitted only to the trial 

court for in camera review.” Id. at 60. Addressing a similar Texas statute, which made 

information given to Crime Stoppers confidential, the Texas Court of Criminal Appeals 

held that the defendant had the right to require the requested information be tendered to 

the trial court for an in camera review, but rejected the argument that the defendant should 

be accorded unlimited access to that information. Thomas v. State, 837 S.W.2d 106, 

113–14 (Tex. Crim. App. 1992) (en banc). The Thomas Court held that “both the State's 

interest and the defendant's interest can be served by providing that crime stoppers 

information should be inspected by the trial court in camera.” Id. at 114. 

Texas Family Code section 261.201 provides for exactly the type of procedure 

approved in Ritchie and Thomas: an in camera inspection of the material by the trial 

judge, and an ongoing duty to disclose any confidential material that is relevant or 

becomes relevant during the course of the trial. See Ritchie, 480 U.S. at 60; see also 

TEX. FAM. CODE ANN. § 261.201. Appellant’s request that this Court “instruct Judges, and 

particularly in Appellant’s case, that the CPS Records were essential to the administration 

of justice” runs directly contrary to the balance struck by both the United States Supreme 

Court and the Texas Court of Criminal Appeals. Bound by that precedent, we reject 
17

appellant’s argument. See Ritchie, 480 U.S. at 60; Thomas, 837 S.W.2d at 114. 

Regarding appellant’s second argument, he asserts that “[t]he trial court abused 

his discretion in failing to timely turn over the audio tapes and documents to the Appellant. 

The Appellant was denied the effective assistance of counsel.” The Texas Rules of 

Appellate Procedure require that an appellant’s brief “contain a clear and concise 

argument for the contentions made, with appropriate citations to authorities and to the 

record.” TEX. R. APP. P. 38.1(i). Appellant does not explain his argument further or cite 

to any authorities except for the standard of review. We overrule appellant’s second 

argument as inadequately briefed. See id. We overrule appellant’s fourth issue. 

VI. IMPEACHMENT OF B.F.

Appellant argues in his fifth issue that the State did not lay the proper predicate 

before impeaching B.F. with her prior inconsistent statement. We disagree.

A. Standard of Review & Applicable Law 

We review a trial court’s decision to admit evidence for a clear abuse of discretion, 

and we will not reverse as long as the judge’s decision lies within the zone of reasonable 

disagreement. McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008). We view 

the evidence in the light most favorable to the trial court’s decision to admit the statement. 

Klein v. State, 273 S.W.3d 297, 304 (Tex. Crim. App. 2008).

Texas Rule of Evidence 613(a) governs the impeachment of witnesses with prior 

inconsistent statements, and provides in pertinent part:

In examining a witness concerning a prior inconsistent statement made by 

the witness, whether oral or written, and before further cross-examination 

concerning, or extrinsic evidence of, such statement may be allowed, the 

witness must be told the contents of such statement and the time and place 

and the person to whom it was made, and must be afforded an opportunity 

to explain or deny such statement. 
18

TEX. R. EVID. 613(a); Harris v. State, 152 S.W.3d 786, 795 (Tex. App.—Houston [1st Dist.] 

2004, pet. ref’d); Flores v. State, 48 S.W.3d 397, 404 (Tex. App.—Waco 2001, pet. ref’d). 

The trial court should not admit the prior inconsistent statement unless the proper 

predicate has been laid. Harris, 152 S.W.3d at 795 (citing Moore v. State, 652 S.W.2d 

411, 413 (Tex. Crim. App. 1983) (en banc)). 

B. Discussion 

Appellant argues that the recording of Lopez’s interview with B.F. was improperly 

admitted because the State did not give B.F. the chance to “either admit or deny the 

testimony.” The following exchange occurred between the State and B.F. before the 

State offered the audio recording into evidence:

[State]: That's okay. Was there ever any time that your dad and [C.T.]

were alone?

[B.F.]: No.

[State]: No? And it's okay if you don't but I want to try to refresh your 

memory, remember, okay? Do you remember talking with 

someone named Frank from Child Protective Services back 

in October at the St. John's house?

[B.F.]: Yes.

[State]: Yes? And do you remember talking to him and he was asking 

you questions?

[B.F.]: Yes.

[State]: And do you remember that he asked you if you had ever seen 

your dad and [C.T.] alone. Do you remember that?

[B.F.]: Yes.

[State]: And do you remember that you told him that you had seen 

them alone?
19

[B.F.]: I didn't say that.

[State]: You didn't say that? Do you remember that you told him that 

you saw them alone a lot of times?

[B.F.]: No.

[State]: You didn't say that? Do you remember telling him that you 

saw them alone in your dad's bedroom?

[B.F.]: No.

[State]: And that the door was closed?

[B.F.]: No.

[State]: Do you remember saying that you and your brother would be 

watching television when that happened?

[B.F.]: No. 

In the above exchange, the State informed B.F. of the substance of the 

inconsistent statement, the time and place in which it was made, and gave her an 

opportunity to admit or deny that she made the statement. See TEX. R. EVID. 613(a). 

Once B.F. denied that she told Lopez during the interview on October 3, 2011 that 

appellant and C.T. were frequently alone together, the State met all of the requirements 

of Texas Rule of Evidence 613(a). See id. We overrule appellant’s fifth issue.

VII. LIMITING INSTRUCTION ON IMPEACHMENT EVIDENCE

Appellant argues by his sixth issue that the court erred by denying his request for 

a limiting instruction on the audio recording of B.F.’s interview with Lopez. We disagree. 

A. Applicable Law

Texas Rule of Evidence 105 provides in pertinent part:

When evidence which is admissible as to one party or for one purpose but 

not admissible as to another party or for another purpose is admitted, the 

court, upon request, shall restrict the evidence to its proper scope and 
20

instruct the jury accordingly; but, in the absence of such request the court's 

action in admitting such evidence without limitation shall not be a ground for 

complaint on appeal.

TEX. R. EVID. 105(a). The party opposing the evidence must request a limiting instruction 

when the trial court admits the evidence or else it is admitted “for all purposes.” Arrington 

v. State, 451 S.W.3d 834, 842 (Tex. Crim. App. 2015); Hammock v. State, 46 S.W.3d 

889, 894 (Tex. Crim. App. 2001). The reason for requiring a contemporaneous request 

for a limiting instruction is that “[a]llowing the jury to consider evidence for all purposes 

and then telling them to consider that same evidence for a limited purpose only is asking 

a jury to do the impossible.” Hammock, 46 S.W.3d at 894.

B. Discussion

When the State offered the recording of B.F.’s interview with Lopez into evidence, 

appellant objected on the basis of relevance, optional completeness, and improper 

impeachment of a witness, but, like the defendant in Hammock, did not request a limiting 

instruction until the charge conference. See id. at 895. Appellant asserts that his 

objection on the basis of improper impeachment was sufficient to put the trial court on 

notice that a limiting instruction should be given, but provides no support for this 

proposition. Appellant, as the party opposing the evidence, had the burden to request a 

limiting instruction at the time the trial court admitted the evidence. See Garcia v. State, 

887 S.W.2d 862, 878 (Tex. Crim. App. 1994) (en banc), abrogated in part on other 

grounds, Hammock, 46 S.W.3d at 893; accord Reeves v. State, 99 S.W.3d 657, 658 (Tex. 

App.—Waco 2003, pet. ref'd); Arana v. State, 1 S.W.3d 824, 829 (Tex. App.—Houston 

[14th Dist.] 1999, pet. ref'd). Because appellant did not request a limiting instruction at 

the first opportunity, we hold that the court did not err in not giving the instruction. See 
21

Arrington, 451 S.W.3d at 842; Hammock, 46 S.W.3d at 895. We overrule appellant’s 

sixth issue. 

VIII. ADMISSION OF VIDEO FROM MAGGIE’S HOUSE INTERVIEW

By his seventh issue, appellant argues the trial court erred in admitting the video 

recording of C.T.’s interview at Maggie’s House because it did not meet the requirements 

for admission of prior consistent statements of a witness. See TEX. R. EVID. 801(e)(1)(c). 

We disagree. 

A. Standard of Review and Applicable Law

We review a trial court’s decision to admit evidence for a clear abuse of discretion, 

and we will not reverse as long as the judge’s decision lies within the zone of reasonable 

disagreement. McCarty, 257 S.W.3d at 239. We view the evidence in the light most 

favorable to the trial court’s decision. See Klein, 273 S.W.3d at 304.

A prior consistent statement of a witness is generally inadmissible except as 

provided by Texas Rule of Evidence 801. TEX. R. EVID. 613(c). Under that rule, a prior 

consistent statement of a witness is admissible if (1) the witness has testified and is 

subject to cross-examination, and (2) the statement is “consistent with the declarant's 

testimony and is offered to rebut an express or implied charge against the declarant of 

recent fabrication or improper influence or motive.” TEX. R. EVID. 801(e)(1)(c). The trial 

court has substantial discretion to admit a prior consistent statement even if there has 

been “only a suggestion of conscious alteration or fabrication.” Hammons v. State, 239 

S.W.3d 798, 804–05 (Tex. Crim. App. 2007) (internal quotation marks omitted). The rule 

does not permit courts to admit evidence that would otherwise be hearsay whenever a 

witness’s memory or credibility is challenged, but there is no bright-line rule to distinguish 
22

between a general challenge to the witness’s memory or credibility and a suggestion of 

conscious alteration or fabrication. Id. at 805. The trial court should determine if the 

cross-examiner’s questions or the tenor of the questioning would “reasonably imply an 

intent by the witness to fabricate.” Id. The implication may be subtle and may come 

through the “tone, tenor, and demeanor” of the questioning or the cross-examiner. Id. at 

808. Reviewing courts, “in assessing whether the cross-examination of a witness makes 

an implied 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. (brackets and emphasis in the original, internal quotation 

marks omitted). 

B. Discussion

Two exchanges occurred between appellant’s counsel and C.T. during crossexamination. The first exchange referenced inconsistencies between C.T.’s previous 

statements and those she made during her interview at Maggie’s House regarding the 

circumstances surrounding the first incident of abuse:

[Defense]: You said you were eight years old?

[C.T.]: Yes, sir.

[Defense]: The first time it occurred, right?

[C.T.]: Yes, sir.

[Defense]: You also said it happened in Pittsburgh, Texas?

[C.T.]: Yes, sir.

[Defense]: Okay. You said you were in the third grade?

[C.T.]: Yes, sir.
23

[Defense]: Okay. It's also true that you said that you're alleging that you 

were touched on your vagina with the fingers; is that right?

[C.T.]: Yes, sir.

[Defense]: So you are saying that this happened before your 

grandmother [name omitted] was going to pick you up for a 

performance; is that right?

[C.T.]: Yes, sir.

[Defense]: Okay. And after this occurred your grandmother picked you 

up; is that right?

[C.T.]: Yes, sir.

[Defense]: [C.T.], isn't it true that you told the interviewer Monica Galvan 

at Maggie's House that that was not the first time it occurred?

Didn't you give her a different account of the first time it 

occurred?

[C.T.]: I corrected myself at the end of the interview.

[Defense]: You corrected yourself at the end of the interview?

[C.T.]: Yes, sir.

[Defense]: So that would be in that interview if you corrected yourself at 

the end of that interview, it would be in that interview that the 

state has; is that correct?

[C.T.]: Yes, sir.

[Defense]: Isn't it true that you told the interviewer at Maggie's House the 

first time it happened was in fact when you did come home 

sick one day from school?

[C.T.]: Yes, sir.

[Defense]: Okay. And you'd agree those are two different statements, 

right? Two different recollections of the first time it occurred?

[C.T.]: Yes, sir. But I did correct myself at the end of that video
24

The second exchange referenced inconsistencies between C.T.’s testimony and 

her statements at Maggie’s House regarding the time period in which the abuse ceased:

[Defense]: All right. You also talked that he would also touch your 

breasts; is that right?

[C.T.]: Yes, sir.

[Defense]: What would he do when he would touch your breast[s]? What 

happened then?

[C.T.]: He just moved them around or he’d grab his thumb around my 

nipples or he’d suck on them.

[Defense]: When was the last time that occurred that he ever did that? 

Do you remember?

[C.T.]: I don’t have an exact date. I don’t remember exactly when.

[Defense]: Did you ever give an estimation to anyone as to when that 

may have stopped?

[C.T.]: No, sir. 

[Defense]: You never told the interviewer at Monica’s House when it 

stopped, at Maggie’s House?

[C.T.]: Not that I can remember. 

[Defense]: You never told her that it stopped before July 4th?

[C.T.]: Not that I can remember. 

As appellant reiterated multiple times on appeal, his trial counsel’s overriding 

strategy was to highlight the inconsistencies in C.T.’s various statements to Chesney, 

Natalie, Officer Andrade, Lopez, the Maggie’s House interviewer, and her testimony at 

trial. Trial counsel’s cross-examination of C.T. dwelt almost entirely on various 

inconsistencies in her statements. In the selections we quoted above, counsel identified 

two inconsistencies between the Maggie’s House interview and other statements: C.T.’s 
25

description of the first incident of abuse and the time period in which it ceased. The trial 

court evidently interpreted the “tone, tenor, and demeanor” of the questioning as raising 

a charge of fabrication by commenting that appellant “called the issue of consistency or 

inconsistency into issue.” Thus, the purpose of the impeaching party, the surrounding 

circumstances, and the trial court’s interpretation of the questioning all support the trial 

court’s ruling. See Hammons, 239 S.W.3d at 808. Deferring to the trial court’s 

“substantial discretion” to admit prior consistent statements after determining that the 

witness’s credibility has been challenged, we conclude that the trial court did not err in 

admitting the recording. See id. at 804–05 

Appellant presents an additional argument under this issue: even if the State’s 

theory is correct, the tape should not have been admitted into evidence because the State 

did not segregate the admissible portions of the interview from those containing 

inadmissible statements. Appellant objected on hearsay grounds, but he did not request 

that the State segregate the inadmissible portions, if any, from what was admissible. 

Appellant is correct in his argument that Texas Court of Criminal Appeals precedent is

that if admissible and inadmissible statements are not segregated the trial judge “may 

properly exclude all of the statements,” but the Court held in the same case cited by 

appellant that the “trial court need never sort through challenged evidence in order to 

segregate the admissible from the excludable, nor is the trial court required to admit only 

the former part or exclude only the latter part.” Willover v. State, 70 S.W.3d 841, 847 

(Tex. Crim. App. 2002) (internal quotation marks omitted); accord Whitaker v. State, 286 

S.W.3d 355, 369 (Tex. Crim. App. 2009); Reyna v. State, 168 S.W.3d 173, 178 (Tex. 

Crim. App. 2005). Following Willover, we hold that the trial court did not abuse its 
26

discretion in admitting the entire portion of the interview because appellant did not request 

that the inadmissible and admissible portions of the recording be segregated or specify 

which portions were inadmissible. See Whitaker, 286 S.W.3d at 369; Reyna, 168 S.W.3d 

at 178; Willover, 70 S.W.3d at 847. We overrule appellant’s seventh issue.

IX. WITNESS COMMENTARY

By his eighth issue, appellant argues that the State elicited improper opinion 

testimony from Chesney, Lopez, Detective Cisneros, Sonia Eddleman,9 and C.T.’s 

biological father on the credibility of C.T.’s allegations. We disagree.

To preserve error for appellate review, the complaining party must make a timely, 

specific request or objection and obtain an adverse ruling from the trial court. TEX. R.

APP. P. 33.1(a); Brewer v. State, 367 S.W.3d 251, 253 (Tex. Crim. App. 2012). Failure to 

object to the admission of evidence waives any complaint on appeal. Reyes v. State, 84 

S.W.3d 633, 638 (Tex. Crim. App. 2002). Our review of the record shows that appellant 

did not object to any of the testimony he now references in his brief. Appellant has not

directed us to any place in the record where he objected. Accordingly, we conclude that 

appellant has waived this issue. TEX. R. APP. P. 33.1(a); see Brewer, 367 S.W.3d at 253;

Reyes, 84 S.W.3d at 638. We overrule appellant’s eighth issue. 

X. TESTIMONY OF JUSTICE OF THE PEACE DAVID GARZA

Appellant argues by his ninth issue that the trial court erred by refusing to present

Justice of the Peace David Garza as a witness. Appellant’s counsel requested on the 

record that the court permit him to call Judge Garza because he wanted to solicit 

testimony regarding why Judge Garza found a probable-cause affidavit submitted by 

 

9 Sonia Eddleman, a trained Sexual Assault Nurse Examiner, did not personally examine C.T., but 

testified to the contents of C.T.’s medical records after reviewing them.
27

Detective Cisneros to be insufficient to justify issuing a warrant. The trial judge stated 

that he would not allow Judge Garza to be subject to subpoena “to testify as to his mental 

process on granting or denying anything.” Appellant asserts that the court’s ruling 

violated his right to compulsory process to obtain witnesses under the state and federal 

constitutions. We disagree. 

A. Standard of Review and Applicable Law

Criminal defendants have a right under the state and federal constitutions to 

compulsory process to obtain witnesses. See U.S. CONST. amend. VI; TEX. CONST. art. I, 

§ 10; see also Williams v. State, 273 S.W.3d 200, 232 (Tex. Crim. App. 2008). But that 

right is not absolute. Tope v. State, 429 S.W.3d 75, 83 (Tex. App.—Houston [1st Dist.] 

2014, no pet.). We review limitations on the right to compulsory process for an abuse of 

discretion. Lawal v. State, 368 S.W.3d 876, 885 (Tex. App.—Houston [14th Dist.] 2012, 

no pet.) (citing Drew v. State, 743 S.W.2d 207, 225 n. 11 (Tex. Crim. App. 1987) (en 

banc)). 

B. Discussion

As a general rule, judges may testify in proceedings over which they are not 

presiding if they are competent to do so.10 Hensarling v. State, 829 S.W.2d 168, 171 

(Tex. Crim. App. 1992) (en banc). However, courts have refused to issue subpoenas for 

judges to testify about the mental processes by which they reached a decision “absent 

extreme and extraordinary circumstances.” Gary W. v. State of La., Dept. of Health & 

 

10 A judge may not testify in a proceeding over which the judge is presiding. TEX. R. EVID. 605; 

Hensarling v. State, 829 S.W.2d 168, 171 (Tex. Crim. App. 1992) (en banc); State v. Stewart, 282 S.W.3d 

729, 736 (Tex. App.—Austin 2009, no pet.). The Texas Supreme Court has held that that this rule applies 

not only to judges but also to all persons performing judicial functions. Bradley v. State ex rel. White, 990 

S.W.2d 245, 249 (Tex. 1999).
28

Human Res., 861 F.2d 1366, 1369 (5th Cir. 1988) (internal quotation marks omitted). The 

Fifth Circuit has explained that permitting “such an examination of a judge would be 

destructive of judicial responsibility” because:

While a judge enjoys no special privilege from being subpoenaed as a 

witness, it is imperative when he is called to testify as to action taken in his 

judicial capacity, to carefully scrutinize the grounds set forth for requiring his 

testimony. Should a judge be vulnerable to subpoena as to the basis of 

every action taken by him, the judiciary would be open to frivolous attacks 

upon its dignity and integrity, and interruption of its ordinary and proper 

functioning.

United States v. Anderson, 560 F.3d 275, 282 (5th Cir. 2009) (quoting Gary W., 861 F.2d 

at 1369); see United States v. Morgan, 313 U.S. 409, 422 (1941) (suggesting that a judge 

cannot be required to testify regarding his mental impressions of a case). The few Texas 

courts to address cases where a non-presiding judge was called to testify have all 

recognized the federal “mental processes” rule or have spoken of it with approval. 

Thomas v. Walker, 860 S.W.2d 579, 582 (Tex. App.—Waco 1993, orig. proceeding) 

(citing Morgan, 313 U.S. at 421); Tate v. State, 834 S.W.2d 566, 570 (Tex. App.—Houston 

[1st Dist.] 1992, pet. ref'd). When confronted with an appeal challenging an order 

quashing a subpoena of a visiting judge who presided over a portion of the defendant’s 

case, the First Court of Appeals reasoned as follows: 

Texas law has not established circumstances or conditions under which a 

judicial official might properly be compelled to articulate his reasons for a 

decision in a particular case, and we do not propose to state such a rule 

here. However, we conclude that if such a rule were to be established, the 

better rule would require, at the very least, a threshold showing of improper 

conduct on the part of the judge that would justify compelling him to testify.

Tate, 834 S.W.2d at 570. 

We find the Tate Court’s reasoning to be sound and apply it to the situation before 

us. Texas law has not established under what circumstances or conditions a non-
29

presiding judge or judicial officer may be called to testify about their mental processes, 

but if we were to establish such a rule, it would at least require a threshold showing of 

improper conduct on the part of the judge. See id.; Walker, 860 S.W.2d at 582 (requiring 

a threshold showing of improper conduct on the part of a judge to justify requiring the 

judge to testify regarding his mental processes); see also Sims v. Fitzpatrick, 288 S.W.3d 

93, 102 n.5 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (citing Tate and noting that 

even if appellants had preserved their general complaint that the assigned judges erred 

in quashing subpoenas issued to the trial judge, they still would have to show the 

existence of extraordinary circumstances). In this case, appellant has made no showing 

of improper conduct on the part of Judge Garza or shown any other extraordinary 

circumstance that would justify requiring him to testify. Applying the reasoning of Tate, 

we hold that the trial court did not abuse its discretion in refusing to permit appellant to 

call Judge Garza as a witness. See Tate, 834 S.W.2d at 570. We overrule appellant’s 

ninth issue. 

XI. OBJECTIONS UNDER TEXAS RULES OF EVIDENCE 402/403/404

Appellant argues in his tenth, eleventh, and twelfth issues that the trial court 

committed reversible error by overruling his objections under Texas Rules of Evidence

402, 403, and 404 to Natalie’s testimony that she warned Chesney not to be in the pool 

with appellant because he “acted like a teenage boy and not like a dad in the pool with 

the girls.”

A. Standard of Review and Applicable Law

We review a trial court’s decision to admit evidence for a clear abuse of discretion, 

not reversing so long as the judge’s decision lies within the zone of reasonable 
30

disagreement. McCarty, 257 S.W.3d at 239. We will uphold the ruling if it is correct on 

any applicable theory of law even if the trial court relied on an incorrect reason for 

reaching its decision. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

B. Discussion

The following exchange occurred during the State’s redirect examination of 

Natalie:

[State]: And defense counsel was talking with you about how the 

defendant would come over to your house. You said that he 

would spend time outside, and you also said that occasionally 

when he did [come] into your house you were there, correct? 

And defense counsel [sic] said that stated you must be okay 

with him being around your children. Is that a correct 

statement?

[Natalie]: I'm really careful about who’s around my kids. Like did I have 

them babysit or babysit my children, to [?]

[State]: Would you leave your kids alone with him?

[Natalie]: No.

[State]: Did they ever stay alone with him?

[Natalie]: No.

[State]: Did you ever warn your children?

[Natalie]: Yes. I told my daughter to—

[Defense]: Objection, Your Honor, relevance.

[State]: Your Honor, Defense counsel made it clear—

[Trial Judge]: I’m going to overrule that objection. 

[State]: You can answer.

[Natalie]: I just told my daughter not to be alone with [Appellant] and 

especially, well, I told her never to be in the swimming pool 

with him.
31

Appellant’s counsel requested to approach the bench. After a bench conference 

off the record, the trial judge held a hearing outside of the presence of the jury to consider 

appellant’s renewed objections.11 At the hearing, Natalie testified that her full answer to 

the State’s question would have been that she “had seen inappropriate behavior between 

him and other girls, and between him and my daughter. Just like you would see from a 

teen-age boy trying to accidentally cop a feel only he’s a dad.” The trial judge overruled 

appellant’s objections but stated that he would allow the State “to go into it very briefly, 

but only very briefly.” The trial judge also instructed that Natalie should not state that 

appellant would try to “cop a feel.” The State responded that it would “not go beyond 

what has already been said.” Natalie testified in the presence of the jury that she did not 

want Chesney to be in the pool with appellant because he “acted like a teen-age boy and 

not like a dad in the pool with the girls.” Natalie further testified that she thought this was

“very inappropriate behavior.” 

Appellant argues that the court’s ruling was error, but we conclude that the error, 

if any, was harmless. We review the erroneous admission of evidence concerning 

extraneous offenses or bad acts for harm under Texas Rule of Appellate Procedure

44.2(b). Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007); see TEX. R. APP.

P. 44.2(b). Under this standard, we must disregard the error if, after examining the record 

as a whole, we have come to a “fair assurance” that the error did not affect appellant’s 

 

11 Texas Rule of Appellate Procedure 33.1 requires a timely and specific objection to appear in the 

record. See Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999) (en banc) (citing TEX. R. APP. P.

33.1). Appellant did not renew his objections on the record. However, during the hearing, after Natalie 

answered the judge’s question regarding what her testimony would have been had appellant’s counsel not 

asked to approach, counsel responded: “Judge, that’s totally [inadmissible] under [Texas Rules of 

Evidence] 402, 403, and 404.” We will treat appellant’s counsel’s statement as a further renewal of his 

objections that is sufficient to preserve error. See TEX. R. APP. P. 33.1.
32

substantial rights, see TEX. R. APP. P. 44.2, because it did not influence the jury’s verdict 

or had but a slight effect. Casey, 215 S.W.3d at 855. In assessing the likelihood that the 

jury’s decision was adversely affected by the error, we pay particular attention to factors 

such as the testimony or physical evidence admitted for the jury’s consideration, the 

nature of the evidence supporting the verdict, the character of the alleged error, and how 

it may be considered in connection with other evidence in the case. Haley v. State, 173 

S.W.3d 510, 518 (Tex. Crim. App. 2005). We may also consider the jury instructions, the 

State’s theories, any defensive theories, closing arguments, voir dire, and the State’s 

emphasis on the error. Id. at 518–19.

After examining the record of the trial as a whole, we conclude that the error, if 

any, in admitting this part of Natalie’s testimony did not have a substantial and injurious 

effect or influence in determining the jury’s verdict. First, the jury heard substantial 

testimony from Chesney, Natalie, and C.T. regarding appellant’s actions. Second, neither 

the State nor appellant emphasized this portion of Natalie’s testimony. Third, the alleged 

error did not affect appellant’s defensive theory, which was to call into question the 

truthfulness of C.T.’s statements as a whole. Given the miniscule part that Natalie’s 

testimony played in the State’s case and the State’s lack of emphasis on it, the jury likely 

gave it little weight in comparison to the other evidence before it. See id. at 518. Based 

on the whole record of the trial, if there was an error in admitting this portion of Natalie’s 

testimony, it did not have a substantial or injurious effect or influence in determining the 

jury’s verdict. See Casey, 215 S.W.3d at 855. We overrule appellant’s tenth, eleventh, 

and twelfth issues.
33

XII. COMMENTS OF THE TRIAL JUDGE AND PROSECUTOR

By his thirteenth and fourteenth issues, appellant argues that the trial judge and 

the State committed fundamental error by making improper comments during voir dire. 

To preserve a complaint of improper voir dire for appellate review, a party must make a 

timely and specific objection and receive an adverse ruling from the trial court. Archie v. 

State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007); TEX. R. APP. P. 33.1. Here, because 

appellant did not object, he has waived his complaint on appeal except for fundamental 

error. See Archie, 221 S.W.3d at 699; McLean v. State, 312 S.W.3d 912, 915 (Tex. 

App.—Houston [1st Dist.] 2010, no pet.).

A. Standard for Fundamental Error

The applicable test for determining whether an error during voir dire is 

fundamental, and therefore may be raised for the first time on appeal, is whether the error 

involves a violation of a right that is “waivable only” or a denial of an absolute, systemic 

requirement. Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003). This Court 

has held in the past that the right to an impartial judge is an absolute, systemic 

requirement that may be raised for the first time on appeal if the judge’s comments are 

“so egregious as to deem the judge biased.” Hernandez v. State, 268 S.W.3d 176, 185–

86 (Tex. App.—Corpus Christi 2008, no pet.). 

B. Discussion

Appellant argues here that the trial judge commented on the evidence and shifted 

the burden of proof by saying in reference to the State’s burden that: “[i]t's not a problem. 

You wouldn't be here if they didn't think they could prove it . . . .” However, we evaluate 

a judge’s comments in the context of the record as a whole. See Lopez v. State, 415 
34

S.W.3d 495, 498 (Tex. App.—San Antonio 2013, no pet.). The trial judge’s full remarks 

are as follows:

[The prosecutors] have the burden of proving the guilt and that burden never 

switches. It's a burden that they welcome. It's not a problem. You wouldn't 

be here if they didn't think they could prove it, however, whether they prove 

it or not is something that you must be satisfied beyond a reasonable doubt.

Read in context, the trial judge’s remarks did not shift the burden of proof away 

from the State. The trial judge specifically reiterated that the State bears the burden of 

proof and that the jury is the sole judge of whether the State succeeded in proving its 

case beyond a reasonable doubt. We hold that appellant has not demonstrated 

fundamental error because he has not shown that the judge’s comments were so 

egregious as to deem him biased. See Hernandez, 268 S.W.3d at 185–86.

With regard to the prosecutor’s comments, appellant has not directed us to any 

authority that improper arguments or comments during voir dire by a party, as opposed 

to the trial judge, rise to the level of fundamental error. However, by arguing the State 

shifted the burden of proof, appellant’s argument could be interpreted as going to the 

absolute, systemic requirement that a person may only be found guilty of an offense if a 

rational trier of fact finds sufficient evidence to prove all of the elements of the offense

beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 362–64 (1970). Assuming,

without deciding, that arguments by the State during voir dire shifting the burden of proof 

may rise to the level of fundamental error, we will address appellant’s claims that the 

State’s comments shifted the burden of proof to appellant in the interests of justice.12 

 

12 The Amarillo Court adopted this approach when faced with a similar claim. See Huff v. State, 

No. 07-10-00174-CR, 2010 WL 4828491, at *3 (Tex. App.—Amarillo Nov. 29, 2010, no pet.) (mem. op., not 

designated for publication).
35

Appellant cites the following portions of the State’s voir dire in support of his 

argument that the State shifted the burden of proof to appellant:

Without you our system would fall apart. The bottom line is we can have a 

case and it can have law enforcement that goes out to the scene, there can 

be child protective services involved, we can have forensic interviewers, we 

can have medical examiners, we can have prosecutors, we can have 

investigators, but it wouldn't be anything without you because at the end of 

the day we can bring the case to you that we believe we can prove beyond 

a reasonable doubt but if you guys don't go there with us, if you don't sit and 

listen to it, we've all done it in vain.

Shortly afterwards, during voir dire, the prosecutor stated: 

Sexual abuse of children is a very conflicting topic. It's polarizing. People 

don't want to hear about it. Raise your card if you know right now you don't 

want to hear about it. So almost everybody. Raise them high. Keep them 

up please, 2, 3, 4, 5, 8, 9, 15, 16, 17, 18, 19 and it goes on and on and on. 

The truth is I don't blame you. When I started as a prosecutor, I didn't want 

to hear about it either. But the truth is if everybody had a strong reaction to 

child abuse didn't sit on jury panels, if that was a reason for you to be 

excused from jury duty today, then either we wouldn't be able to have these 

trials because there wouldn't be anybody to hear them or the people, worse, 

the people that heard them would be people who didn't get emotional about 

child abuse and what a tragedy that would be.

In the first quoted portion of voir dire, the State emphasized that the role of the jury 

is important and that the State believed that it could carry its burden of proving its case 

beyond a reasonable doubt. Before voir dire began, the trial judge emphasized that the 

burden of proof rests with the State to prove all elements of the charged offenses beyond 

a reasonable doubt, and the jury charge reflected that fundamental requirement. In the 

second quoted portion, read in context, the prosecutor merely mentions how

uncomfortable many people feel at the thought of sexual abuse of children and asks the 

members of the venire to refrain from seeking not to serve because they might feel 

uncomfortable hearing the evidence in this case. We find nothing in either argument that 

shifts the burden of proof to the defense or asks jurors to convict on the basis of the jurors’ 
36

emotional repugnance for child abuse rather than the evidence presented in the State’s 

case. We hold that State’s comments do not rise to the level of fundamental error. See 

Aldirch, 104 S.W.3d at 895. We overrule appellant’s thirteenth and fourteenth issues.

XIII. CUMULATIVE ERROR

By his fifteenth issue, appellant argues that the cumulative effect of all of the errors

raised in his other issues requires reversal. The Texas Court of Criminal Appeals has 

observed that “[i]t is conceivable that a number of errors may be found harmful in their 

cumulative effect,” but there is no authority that “non-errors may in their cumulative effect 

cause error.” Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (en 

banc). Because we have found no error in all but one of appellant’s issues and here 

concluded that that error, if any, was harmless, there is no cumulative error requiring 

reversal. See id.; Gallegos v. State, 340 S.W.3d 797, 805 (Tex. App.—San Antonio 2011, 

no pet.) (holding that there was no cumulative error requiring reversal when the court of 

appeals overruled all but one of the appellant’s other issues). We overrule appellant’s 

fifteenth issue.

XIV. CONCLUSION

We affirm the judgment of the trial court. 

NORA L. LONGORIA

Justice

Publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

23rd day of April, 2015.