### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00582- CR

Candalario Cerda, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CALDWELL CO UNTY, 421 ST JUDICI AL DISTRICT NO. 201 0-0 82, TH E H ONO RAB LE TO DD A. B LOM ERTH, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted appellant Candalar io Cerda of two counts of sexual ass a ult of a child and for eac h count assessed his punishment at confinement for ten y ear s in the Tex as Department of Criminal J ustice and a $5,000 fi n e. S ee T ex . Penal Code § 22.011(a) (2)( A). The trial court i m p o sed sentenc e in acc ordanc e with the jury ’s verdic t and order ed the sentenc es to b e s er v ed

consec utively

. See id. § 3.03(b)( 2)(A) ; Tex. Code Crim. Proc. art. 42.08. I n five points of err or on appea l, appellant complains about the admission of “bac kdoor” hear say evidenc e, the exclusion of impeachme nt evidenc e, the trial court’s failure to conduct a hear ing outside the prese nce of the jury
to deter mine the admissibili ty of ex t ra n eo u s -off ense evidenc e, the denial of his rig ht to prese nt a

m eaning ful defe nse, and the i nsufficie ncy of t he evidence to support his convictions. We find n o

reve rsible err or. Howeve r, throug h our own revie w o f the rec ord, we have found non-re versible err orin the written judgme nts of conviction. We will modify the judgme nts to corr ect the cler ical err ors

and, as modified, a ffirm the judg ments.

BACK GR OUND

V.R. testified that she knew appellant throug h churc h, wher e h e w as a worship leade r. When she was 15 y ear s old, she exchang ed phone numbers with appellant at a church member’ s funer al. Subsequently , they beg an text ing and talking with eac h other fr eq u ently

. I n one of their

conver sations, a

ppellant asked V.R. if she would have sex with him. She ref used beca use he went to her churc h and was 25 y ear s old. Appellant assure d her that no one would know. One wee k afte r the funer al, appellant asked V.R. to meet him at an H.E.B

. g roce ry store near her house. V.R. snuck
out of her house while her pare nts wer e aslee p and met him as he had asked. Appellant picked V.R. up in his black pickup truck and told her that they wer e g oing to his friend’ s house to watch a movie. I nstead, howe ver, he drove he r to a va cant lot.

Appellant parke d the truck at the lot and told V.R. to g et in the back seat, take off her clothes, and lie down. As she complied, appellant put sun shades up to cover all the windows, then moved to the back seat and remove d his clothes. He took a towel from under the seat and place d it

on the seat underne ath V.R. He then put his fing ers inside her vag ina. Appellant next direc ted V.R. to g et on her hands and knees. After she complied, he put his penis inside her vag ina. At this point, V.R. told appellant to stop but he did not. Acc ording to V.R.’s testimony , he only stopped when he noticed blood coming from her vag ina. He g ave her paper towels to wipe herse lf and then told her
to g et dresse d. Appellant put his clothes back on and g ot back in the front seat. He told V.R. to stay

on the floor of the backse at while he drove her home. He dropped her off at a churc h near her house.
2Howeve r, V.R. was a fra id to g o home. I nstead, she walked around town. At some

point, she encounte red a boy she knew as “Jeremiah,” who was a friend of one of her brothers. She borrowe d his phone to call her mother but hung up befor e her mother answe red b ecause she g ot

scar ed. V.R. testified that J ere miah asked he r to have sex wit h him but she said no. The two then smoked marijuana toge ther. At some point, V.R. saw a knife sticking out from J ere miah’s pocket, beca me s car ed, and ran off wit hout returning J ere miah’s phon e. After war ds, as she was walking, she saw one of her brothers outside a near by store. Her brother picked her up and drove her home. Once at home, V.R. eve ntually told her dad tha t “[appellant] raped [her].” F.F

. met appellant at churc h when she was 12 y ear s old. When she was 14, she and appellant beg an talking on the phone. Appellant beg an asking F.F

. to sneak out of her home at night, which she did. He would pick her up in his truck. F.F

. testified that her rela tionship with appellant beca me “phy sical”—me aning sexual—when she w a s 1 5 y e a r s o ld

. Sh e d e scribed multipl e occa sions

on which she and appellant eng ag ed in sexual activities; she st at ed t h at t h eir sexual rela tionship lasted ni ne or ten m onths. F.F . also testified about two incidents in which she was with appellant parke d in his truck and they wer e discovere d by police: one at a park wher e they wer e “just talking” (bef ore their rela t i onship had become sexual) and another at a parking g ara g e at Texas State University wher e they wer e both undresse d and about to ha ve sex. F.F

. descr ibed having sex with appellant at a Motel 6 in San Marc os, in his truck at multipl e locations, and in a storag e building at churc h. Her testimony ref lected that on numerous occa sions appellant had anal sex, vag inal sex, and oral sex with her. He also penetr ated her digitally on repe ated occa sions, including one time when

3he attempted to put his entire fist into her vag ina, causing her to bleed. F.F . disclosed appellant’s

conduct with her

afte r V.R. re veale d appellant’ s sexual assault of her. The State char g ed appe llant with two counts of sexual assault of a child, one count rela ting to eac h g irl. A jury found appellant g uilt of sexually assaulting both g irls and for eac h count assessed a t en-y ear sentenc e and a $5 , 0 0 0 fi n e. T he trial court sentenced appellant in acc ordanc e with the jury ’s ver dicts, order ing the sentenc es to run conse cutively . This appea l followed.

DISCUSSIO N Backdoor Hearsay At trial, M elissa Rodrigue z, a fore nsic interviewe r with the children’ s advoca cy cente r, testified about the demea nor of V.R. and F.F

. during their fore nsic interviews as well as the fac t that both g irls wer e enrolled in counseling at t he advocac y cente r. Also at t rial, V.R.’s fathe r testified about what he did after his daug hter told him about what had ha ppened. I n his first point of err or, appellant complains that the trial court err ed by allowing th i s t es t i m ony beca use it constituted inadmissibl e “ba ckdoor” hear say .

Hea rsay is a statement, other than one made by the decla rant while testify ing at a trial, offe red in evide n ce t o p ro v e the truth of the matter asser ted. Tex. R. Evid. 801(d). Hea rsay is g ener ally inadmissible except as provided by th e ru l es o f ev i dence or statute. Tex. R. Evid. 802. The hear say prohibition cannot be circ umvented by eliciting the substance of the statemen t in indirect form. Schaffer v. State , 777 S.W .2d 111, 113 (Tex. Crim. App. 1989). I f the content of a statement is prese nted by implication, such “bac kdoor hear say ” i s s ubject to the same rules and limit ations as the more comm o n fo rm of hear say . Gilbert v. State , 874 S.W .2d 290, 295 (Tex.
4App.—Houston [1st Dist.] 1994, pet. ref ’d) (citing Schaffer , 7 7 7 S.W.2d at 113). Whether testimony violates the hear say prohibition n ec es sarily turns on how strong ly the content of an out-of-c ourt statement can be inferr ed from the context; the question is whether the st re n gt h o f t h e infere nce produce s an “inescapa

ble conclusion” that the evidence is being off ere d to prove the substance of

an out-of-c ourt statement. Head v. State , 4 S.W .3d 258, 261–62 (Tex. Crim. App. 1999). “An analy sis of whether the impermissible infere nce is so overr iding as to fall within the hear say prohibition will nece ssarily turn on the s p ecific fac tual circ umstances of a g iven case .” Id. at 262 n.4. Appellant arg u es that the complained- of testimony contained strong infere nces about the t ruthfulness of the out cry statements of the girls and thus was “backdoor” h ea rs ay . However, hear say by infere nce, or backdoor hear say , vi o l ates the prohibition ag ainst hear say beca use it prese nts the content or substance, indirectly , of the out-of-c ourt statement. Her e, the complained- of testimony did not convey the content of the g irls’ ou t -o f- co u rt statements, even by implication. Rodrigue z did not g ive any specific s about the g irls’ comments during the fore nsic interviews; she simply descr ibed her observa tions of the g irls during their interviews. These persona l observa tions 1

We note that the prosec utor asked Rodrigue z, “Can y ou descr ibe [F.F.]’s demea nor during 1 this interview? ” She responde d, “Ye s,” and then proce eded to descr ibe F.F .’s demea nor. Only afte r she completed her answe r did appellant object. Be cause appellant waited until the question calling for the purp ortedly objectionable response had been asked and answe red befor e he objected, his objection was untimely and his complaint about the admission of Rodrigue z’s testimony a b out F.F .’s demea nor has not been prese rved for appellate revie w. See Tex. R. App. P. 33.1(a) (1); see also Pena v. State , 353 S.W .3d 797, 807 (Tex. Crim. App. 2011) (objec tion is timely if made at ear liest opportunity or as soon as g rounds for objection become appar ent); Saldano v. State , 70 S.W .3d 873, 889 (Tex. Crim. App. 2002) (“[T]h e fa i l u re t o object in a timely and specific manner during trial forf eits complaints about the admissibilit y of evide nce.” ). 5convey ed her perc eption of how the g irls felt emotionally during the interview; they did not convey

the contents of any statements made during the interview. The fac t that V.R. “see med nervous” or that F.F

. “wa s pretty upset” in no way convey ed their descr iptions of the acts of sexual abuse appellant perpetrated aga inst them. Nor doe s the fac t that the girls wer e in counseling convey the content of a

ny out-of-c ourt statement desc ribing sexual abuse. S i m i l ar l y , V.R.’s fathe r did not convey any specific s about what his daug hter told him. Rather, his testimony mere ly desc ri b ed the actions he took afte r talking to her. The 2 p ro h ibition ag ainst backdoor hear say does not prohibit a witness from testify ing about acti o n s h e took in response to an out-of-c ourt statement, but only from detailing the contents of the statement when doing so. S

ee , e. g . , S chaffer , 777 S.W .2d at 114–15 (holding it was permissible for police office r t o testify that office r was acting in response to “informa ti o n rec eived,” but office r was not permitted to rela te historical aspec ts of case , which wer e reple te with hear say statements); see also Dunbar v. State , No. 03-12-00315- CR, 2014 WL 2741237, at *5 (Tex. App.—Austin J une 13, 2014,

no. pet. h.) (mem. op., not desig nated for publication) (“Witnesses are g ener ally allowed to explain that an out-of-c ourt statement cause d the witness to take a particula r action so long as the testimony does not strong ly

imply the content of

the out-of- court stateme nt.”). The test for backdoor hear say is whether the “‘State’ s sole intent in pursuing [a] line of questioning was to convey to the jury ’ the contents of out-of-c ourt statements.” Head , 4 S.W .3d

V.R.’s fa t h er an s we red aff irmatively when the prosec utor asked, “Oka y . Did, at some 2 point, [V.R.] open up to y ou about what had happene d? ” Appellant neither objected to this question nor t he answer. Appellant objec ted to the next question about whether V.R. “[made] an outcry to [ h i m ] , ” wh i ch the trial court sustained. The prosec utor then asked V.R.’s fathe r, “What did y ou do next? ” 6at 262 (quoting Schaffer , 777 S.W .2d at 114). Be ca u s e t he content of the g irls’ out-of-c ourt

statements wer e not impliedly prese nted in the testimony of the fore nsic interviewe r or V.R.’s fathe r,

we are unable to conclude from the rec ord that the State’s sole intent in offe ring the complained- of testimony was to conve y

the content or

substance of any of the g irls’ out-of-c ourt statements. See id. (conc luding that tria l court could ha ve re asonably deter mined that State’s intent in questioning witness was not solely to convey out-of-c ourt statement). Acc ording ly , the trial court did not abuse its discretion in allowing the complained- of testimony

. See Gurka v. State , 82 S.W .3d 416, 421 (Tex. App.—Austin 2002, pet. ref ’d) (trial court’s decision to admit testimony objected to on basis of backdoor hear say is subject to abuse- of-discr etion standard) ; Head , 4 S.W .3d at 262 n.4 (re view of trial court’s decision to allow disputed testimony is tempere d by gen er al rule that trial judge ’s evidentiar y ruling on hear say objection will be upheld absent ab u s e o f d i scre tion). We overr ule appellant’ s first point of err or.

Im peachm ent Evidence

As evidenc e of the previous and subsequent rela tionship betwee n appellant and F.F .,
see Tex. Code Crim. Proc. art. 38.37(b)( 2), the State offe red evidenc e of an incident when appellant and F.F

. wer e discovere d by police par

ked in appe llant’s truck in a unive rsity g ara g e on the Texas State University campus. Upon discovery , appellant attempted to flee the scene in his truck but was appre hended a

nd arr ested for

evading detention. J esus Ba lderama, a senior patrol office r wit h t h e T ex as State University campus police, testified about the encounte r with a ppellant. He stated that he discovere d appellant’ s truck in one of the uni versity ’s par king g ara g es at a

pproxi mately

1:30 a.m. with the eng ine running and
7sun shades cover ing all the windows. The office r descr ibed his failed attempts to make contac t with

the occ upants of the truc k and the ensuing chase when appellant drove off. He testified that as he

was pursuing appellant’ s truck, he noticed someo n e running from the truck and advised his dispatcher of the situation. He explained that he did not actua lly see the person jump out of the truck but did notice someone running from it. 3

During cross-e x amination, appellant’ s counsel questioned Offic er Ba ldera ma about the flee ing fig ure. He asked the office r to descr ibe “the imag e that y ou say y ou saw exit the car and for how long y ou saw that imag e.” The office r responde d that h e “s aw that imag e for a brief 30 seconds, if that.” Counsel later asked the office r how long the flee ing fig ure was on the dash-c am video from his patrol car . Offic er Ba ldera ma responded , “L ike I said, g ive or take a couple of seconds, 20, 30 seconds.” Appellant’s counsel persisted, asking , “A couple of seconds or 20, 30? ” The office r repe ated the time fra me of “30, 20, 30 seconds.” Counsel then announce d his desire “to impeach this witness by letting him see his video.” At the ensuing bench confe renc e, appellant’ s counsel indic at ed that he wanted the office r to ref resh his rec ollection with the video “or else [he was] g oing to impeach him with it, one or the other.” Counsel asser ted that “the fig ure, whoeve r it
was, wasn’t visible on his dash cam for more than three seconds, flat.” The trial court declined to 4 allow appe llant’s counsel to impeac h the offic er in this manner

. Subsequent testimony from F.F

. reve aled that she was the person who fled from appellant’ s 3 truck that night. Her testimony also established that she and appellant wer e undresse d and about to eng ag e in sexual activity

in the truck whe n discovere d by the police. I n his brief, appellant asser ts that the fig ure appea

red on the dash-c am video for “3-5 4 seconds of obscure d view.” Appellant failed to offe r the video into evidenc e, so it is not part of the appellate rec ord and is unava ilable for r eview.

8I n his second point of err or, appellant asser ts that the trial court err ed by not allowing his c ounsel to impeach Offic er Ba lderama by showing the dash-c am video of appellant’ s evading

detention ar

rest. He contends that he was e ntitled to im peac h the g ener al credibility of t he officer by use of suc h evidenc e. We disag ree .

As a g ener al ru l e, a p ar ty is not entitled to impeach a witness on a collater al or immaterial matter. Ramirez v. State , 802 S.W .2d 674, 675 (Tex. Crim. App. 1990); Poole v. State , 974 S.W .2d 892, 905 (Tex. App.—Austin 1998, pet. ref ’d). A collater al matter is one which seeks only to t es t a wi t n es s’s g ener al cre dibilit y or rela tes to fac ts irrele vant to issues at trial. Keller

v. State , 662 S.W .2d 3 6 2 , 365 (Tex. Crim. App. 1984); Delamora v. State , 128 S.W .3d 344, 363 (Tex. App.—Austin 2004, pet. ref’d). “The te st as to whether a matter is collatera l is whether the

cross-e x amining party would be entitled to prove it as a part of his case tending to establish his plea.” Ramirez , 802 S.W .2d at 675 (quoting Bates v. State , 587 S.W .2d 121, 133 (Tex. Crim. App. 1979));

see Hayde n v. State , 296 S.W .3d 549, 554 (Tex. Crim. App. 2009). Her e, the evidenc e soug ht to be introduced by appellant bear s no rela tionship to any contested issue in the sexual-assault trial. How long the flee ing fig ure was shown on the dash-c am video was not evidenc e that appellant could have relied on in his case -in-chie f to show that he had not sexually assaulted F.F

. Thus, whether Offic er Ba l d er ama was acc urate as to the prec ise amount of time that the flee ing fig ure appea red on t h e dash-c am video wa s a collate ral matter

.

Fur th er more, a party may not cross-e x amine a witness on a collater al matter and then contra dict the witness’s answe r. Delamora , 128 S. W

. 3 d at 3 63; see Shipman v. State , 604 S.W .2d 182, 184–85 (Tex. Crim. App. 1980). By repe atedly asking Offic er Ba ldera ma how

9long the flee ing fig ure appea red on the dash-c am video, appellant’ s counsel elicited a response from the office r for the sole purpose of introducing extraneous evidence t o co n t ra dict the office r’s response and place t h e office r’s own char acte r into issue. Such questioning was improper. See Hamme tt v. State , 713 S.W .2d 102, 105 (Tex. Crim. App. 1986) (par ty may not “bootstrap” its way to impeachment by

eliciting of

fending statement on cr oss-examination). As a coll ater al matter—not rela ting to appellant’ s claim that he was not g uilty of sexually assaulting F. F. b ut mere ly serving to contra dict Offic er Ba ldera ma on fac ts irrele vant to issues at trial—t h e amount of time the flee ing fig ure appea red on video was inadmissible impeachme nt evidenc e. As such, the trial court did not err by ref using to allow appellant to impeach Offic er B alder ama with the da sh-ca m video. We overrule appellant’ s second point of e rror .
Extraneous-Off

ense Evidence During the State’s rebuttal case , Todd Har rison, a patrol office r with the San Marc os Police Depa

rtment, testified about an incident in which he encounte red appel l an t and 14-y ear -old F.F . parke d in appellant’s truc k in one of the city parks afte r hours, at around 2:30 in the morning. I n his third point of err or, appellant asser ts that the trial court er re d in allowing this testimony without first conducting a hea ring outside the prese nce of the jury to determine its admissibilit y . Preser vation of err or is a sy stemic require ment on appea l. Blackshe ar v. State , 385 S.W .3d 589, 590 (Tex. Crim. App. 2012) (citing Ford v. State , 305 S.W .3d 530, 532 (Tex. Crim. App. 2009)). A revie wing court should not addre ss the merits of an issue that has not been prese rved for appea l. W

ilson v. State , 311 S.W .3d 4 5 2 , 4 7 3

– 7 4 (T ex . Crim. App. 2010). To prese rve a complaint for appellate revie w, a party mus t have prese nted to the trial court a timely reque st,
10objection, or motion that states t h e s p ecif ic grounds for the desired ruling if they are not appar ent fr om the context of the reque st, objection, or motion. Tex. R. App. P. 33.1(a) (1); Clark v. Stat e , 365 S.W .3d 333, 339 (Tex. Crim. Ap p . 2 0 1 2 ). An objection is timely if made at the

ear liest opportunity or as soon as the g rounds for the objection become appar ent. Pena v. State , 353 S.W .3d 79 7 , 8 0 7 (T ex. Crim. App. 2011); Sandoval v. State , 409 S.W .3d 259, 306 (Tex. App.—Austin 2013, no pet.). I f a defe ndant fails to object until afte r an objectionable question has been asked and answe red, and he can s how no leg itimate rea son to justi fy the delay , his objection i s u n timely , and any claim of err or is forf eited. Luna v. State , 268 S.W .3d 594, 604 (Tex

. C ri m . App. 2008); Sandoval , 409 S.W .3d at 306.

Her e, appellant objected to the extraneous-c onduct evidenc e and reque sted a hear ing outside the prese nce of the jury only afte r the office r had alre ady testified about the encounte r rathe r than when the prosecutor bega n eliciting the details of t he encounter. Thus, appellant’ s objection and reques t fo r a h ear ing wer e untimely

. Appellant’s late objection and untimely reque st did not prese rve his complaint as to the admission of the o ff i ce r’s testimony

. See Saldano v. State , 70 S.W .3d 873, 889 (Tex. Crim. App. 2002) (“[T]he failure to object in a timely and specific manner during trial forf

eits complaints about the admissibili ty of evidenc e.”)

. Acc ording ly , we overr ule appellant’ s third point of error

. Right to P rese nt Defense

I n his fourth point of err or, appellant asser ts that the trial court’s evidentiar y ruling s violated his rig ht to prese nt a complete and meaning ful defe nse. As best as we can discern, appellant complains about the e x clusion of the following :
11• evidenc e of a potential alternative perpe trator f or V.R.’s sexual assault,

• evidenc e of a

potential alternative perpe trator f or F .F.’ s sexual assault,

• F.F .’s medica l rec ords from he r stay in a psy chiatric hospital,

• testimony

demonstrating the detec tive’s “shoddy investigation,”

• evidenc e of V .R.’s juvenile rec ord,

• a DPS lab repor

t,

• testimony

about V.R.’s dating history ,

• evidenc e of F .F.’ s preg nancy at the time of the SANE e x am,

• opinion testim ony reg arding F.F .’s truthfulness and unr eliability as a w itness,

• testimony

about a pur

ported prior

false a lleg ation of sexual assault made by F.F .,

• the detec tive’s ar

rest wa rra nt affidavit concer

ning the sexual assault of V.R., and

• rebuttal testimony from the SANE nur se who e x amined V.R.

As noted in the discussion of the previous point of err or, prese rvation of err or i s a sy stemic require ment on appea l. Blackshe ar , 385 S.W .3d at 590. An appellate issue involving a proff er of evidenc e, as opposed t o an objection, must still satisfy the prese rvation-of -er ror require ments. Rey na v. Stat e , 168 S.W .3d 173, 179 (Tex. Crim. App. 2 0 0 5 ) (stating t hat purpose of requiring objection is to g ive trial court or opposing party opportunity to corr ect err or or remove basis for objection and rea soning that “[a]though this case involves a proff er of evidenc e rathe r than

an objection, th e s am e ra t ionale applies”)

. To prese rve a complaint reg arding the exclusion of evidenc e, a party must not only tell the judge that the evidenc e is admissible, but must also explain

12why it is admissible. Id. at 177–79. Fur ther, the explanation g iven at trial must match the one urg ed on appea l. Id. at 179.

As to the excluded evidenc e about which appellant complains in this point of err or, appellant objected only that he was “denie d the opportunity to proper ly defe nd” in connec tion with the exclusion of F.F .’s medical rec ord s fr o m the psy chiatric hospital. Wit h all the other ruling s rela ted t o the complained-of ex clusion of evidence, appellant neither objected to the exclusi on on the g round, nor offe red the evidenc e on the basis, that his rig ht to prese nt a meaning ful defe nse was compromised. Whil e the rig ht to prese nt a meaning ful defe nse is rooted in constitutional protec tions, even constitutional rig hts ma y be waived if the proper reque st, obje ction, or motion is
not asser ted in the trial court. Saldano , 70 S.W .3d at 886–87; see Mende z v. State , 138 S.W .3d 334, 342 (Tex. Crim. App. 2004). I f a party fails to proper ly object to constitutional err ors at trial, these

err ors can be forf

eited. Clark , 365 S.W .3d at 339; Briggs v. State , 789 S.W .2d 918, 924 (Tex. Crim. App. 1990). Be cause appellant did not articula te that his rig ht to prese nt a meaning ful defe nse supported the admission of the complained- of excluded evidenc e (other than F.F .’s medical rec ords from the psy chiatric hospital), the trial court n ev er had the opportunity to rule on this rationale

. Acc ording ly , appellant did not prese rve his complaint that the trial court’s evidentiar y ru lings excluding the complained- of evidenc e (other than F.F .’s medical rec ord s fr om the psy chiatric hospital) violated his rig ht to present a pr oper de fense

.

As to the medi cal rec ords from F.F .’s hospitaliz ation in a psy chiatric hospital, appellant soug ht to offe r these re cords to attack F.F .’s reliability and cre dibilit y . Howeve r, during

cross-e x amination of F.F ., appellant elicited testimony about F.F .’s mental-he alth issues, including

13the fa ct that she eng ag ed in self-ha rming behavior (cutting herse lf), hear d voices (demon voices telling her to kill herse lf), had visual hallucinations (re d and g ree n ey es on the bathroom window that watche d her take showers) , thought her fathe r had been possessed by demons on three occa sions (and

saw him levitate on one such occa sion), and had suicidal ideation (including specific plans for killing herse lf). F.F

. also admitted that when she was in the psy chiatric hospital she denied being sexually abused, even though her hospital stay was afte r appellant beg an eng ag ing in sexual activity with her. L ater , on further cross-e x amination, F.F

. ac k n o wl ed g ed that she was not taking the medications presc ribed to her

to addre ss her visual and a uditory hallucinations. I n addition, appellant called a psy cholog ist to testify as an expert on his behalf

. Ba sed

on his revie w of F.F .’s hospital rec ords, the doctor testified that F.F

. was “suff ering from psy chotic sy mptoms” and “her GAF was quite low.” The two GAF score s F.F

. was g iven, 20 and 15, ref lected 5 “extremely compromised” functioning

. The doctor explained that a GAF score betwee n 21 and 30, “which was a notch above what [F.F.] g ot,” would ref lect people who are actively delusional, having hallu c in a ti o ns, who would have serious impairment in their judgme nt or in their communication, and would be unable to function in most situations. Appellant’s counsel also questioned his expert about the “r isk that is associated whe n a psy chotic stops taking his or her me dication.”

Thus, the re cord r efle cts that the evide nce f or which a

ppellant soug ht admission of F.F .’s medical rec ords was in fac t prese nted to the jury by the defe nse. Appellant was able to attack F.F .’s cre dibilit y with evidenc e of her mental-he alth issues. Appellant’s asser tion that the exclusion

The expert explained: “The GAF is an overa ll rating scale that mental health providers use, 5 in order to try

and make a ver

y g ener al assessment of

the level of

functioning of the individual. I t runs from 0 to 100, with 100 being best, in ten-point incre ments.” 14of the medical rec ords from the psy chiatric hospital deprive d him of “the opportunity to defe nd” is

without merit. W e over

rule a ppellant’s four

th point of error

. 6

Suf fi ciency of the Evidence I n h i s fi n al point of err or, appellant challeng es the sufficie ncy of the evidenc e to support his convictions for sexual assault of a c hild.

Additionally , we observe that appellant’ s brief misstates some of the complained- of ruling s 6 of the trial court and the purported exclusion of evidenc e. For example, appellant states in his brief that his c o u

nsel was not permitted to attack F.F .’s reputa tion for truthfulness throug h defe nse witness L au ra Cerda. Howeve r, the rec ord ref lects that counsel expli citly asked Ms. Cerda, “W h at wa s [F.F.]’s reputa

tion in the communi ty for truthfulness? ” She answe red the question, uninterrupted and without objection from the State. I t was only to the subsequent questioning conce rning a “fa lse rape claim” that the State objected. I n the ensuing proff er outside the prese nce of the jury , appellant wholly failed to make any showing of the falsity of the prior alleg ations. See Lopez v. State , 18 S.W .3d 220, 225–26 (Tex. Crim. App. 2000) (for prior acc usations to have p robative value in impeaching witness’s cre dibilit y in sexual-assault case , party must show acc usations wer e false and simil ar to curr ent acc usation). Acc ording ly , as to that line of questioning, the trial court ruled, “This testimony is not coming in, and the jury will be instructed to disreg ard it in its entirety .” Appellant’s char acte rization of that trial-cour t ruling as excluding testimony from his wi t ness about F.F .’s reputa tion for truthfulness is inacc urate

. Also in his brief, appellant claims that his counsel was preve nted from questioning Detec tive Nichols about the impropriety of two complaining witnesses meeting to collaborate. Yet, the rec ord demonstrates otherwise. During cross-e x amination of the detec tive, appellant’ s counsel asked the detec tive, “I s it g ood police prac tice in y our jurisdiction to allow two witnesses to g et toge ther and compar e their stories befor e they would come to y ou and g ive a second statement? ” After the court overr uled the State’s rele vance objection, the detec tive answe red, “Not if they are known witnesses, no.” Counsel later asked, “I s it g ood prac tic e, t h en , to allow a complaining witness and a

— somebody who had been implicated as a potential complaining witness — t o al l o w t h em to g et toge ther during the course of y our investigation befor e y ou take an officia l statement from the second one? ” De tective Nic hols answer ed,“I f they are in my control, no, it’s not g ood prac tice.” Be cause we resolve this point of err or on the basis of proce dural defa ult (as to the purportedly excluded evidenc e other than F.F .’s medical rec ords) and do not addre ss the substance of appellant’ s complaint (except as to the exclusion of F.F .’s medical rec ords), we need not addre ss these and other incorre ct desc riptions of the rec ord. 15Due proce ss require s that the State prove, beyond a rea sonable doubt, ever y element of the crime char g ed. Jack son v. Virginia , 443 U.S. 307, 313 (1979); Rabb v. State , --- S.W .3d

--- , No. PD-1643-12, 2014 WL 2865698, at *2 (Tex. Crim. App. J une 25, 2014). When revie wing the sufficie ncy of the evidenc e to support a conviction, we consider all of the evidenc e in the light most favor able to the verdic t to deter mine whether any rational trier o f fa ct could have found the essential elements of t h e offe nse bey ond a rea sonable doubt. Jack son , 443 U.S. at 319; Rabb , 2014 WL 2865698, at *2; Brooks v. State , 323 S.W .3d 893, 899 (Tex. Crim. App. 2010). We revie w all the evidenc e in the light most favor able to the ve rdict and a ssume that the trier of fac t resolved conflicts in the testimony , weig hed the e vidence , and dre w re asonable infere nces in a manner that supports the verdic t. Jack son , 443 U.S. at 318; see Laster v. State , 275 S.W .3d 512, 517 (Tex. Crim. App. 2009). We consid er o n l y wh ether the jury rea ched a rational decision. Isassi v. State , 330 S.W .3d 633, 638 (Tex. Crim. App. 2010) (“O ur role on appea l is restric ted to guarding ag ainst the

rar e occ urre nce w hen a f

actf inder doe s not act ra tionally .”) ( quoting Laster , 275 S.W .3d at 518). I n his brief, appellant arg ues that the evidenc e is insufficient to support his conviction for sexually assaulting V.R. beca use there was “no phy sical evidenc e to corr oborate [V.R.’s] story ,” there is no corr oborating DNA evidenc e, appellant’ s mother and sister provided a “solid alibi,” the investiga ting detec tive was “not cre dible,” and there wer e inconsistencies in witness testimony

. He arg ues that the evidenc e is insufficient to support his conviction for sexually assaulting F.F

. beca use F.F .’s acc usation was “not supported by independe nt evidenc e,” F.F

. came forwa rd only afte r talking
to V.R. and discovering that the t wo girls had si milar stories, there was “no DNA corrobor ation,” appellant’ s mother and sister explained how F.F

. had knowledg e of the contents of appellant’ s truck

16(one of the alleg ed sites of sexual-assault incidents), F.F .’s story reg arding one sexu al assault

incident was “ neither pla

usible nor cre dible” and was “strong ly disputed” by testimony of def ense witnesses, F.F

. was not a reliable witness beca use she was aff

licted with psy cholog ical issues, and there wer e omissions and inconsistencies in F.F .’s testimony

.

Howeve r, the jury , as exclusive judge o f t h e fac ts, is entitled to weig h and resolve conflicts in the evidenc e and draw rea sonable i nfer ence s there from. Clayton v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007); see Tex. Code Crim. Proc. arts. 36.13, 38.04. The jury is also fre e to acc ept or reje ct any or all of the e vidence prese nted by either side. See Lancon

v. State , 253 S.W .3d 699, 707 (Tex. Crim. App. 2008); W esbrook v. State , 29 S.W .3d 103, 111 (Tex. Crim. App. 2000). Thus, when the rec ord supports conflicting infere nces, we must presume that the trier of fac t resolved any such conflicts in favor of the verdic t and defe r to that resolution. Jack son , 443 U.S. at 326; Anderson v. State , 416 S.W .3d 884, 888 (Tex. Crim. App. 2013).

V.R. testified t hat on the n i g ht in question she was 15 y ear s old and, at appellant’ s direc tion, snuck out of her house while her pare nts wer e aslee p. Appellant picked her up behind an H.E.B

. g roce ry store near her house. He drove her to a vaca nt lot, wher e he parke d his truck and put multipl e sun scre ens up to cover all the truck windows. He told V.R. to g et in the back seat. When she compli ed he told her, in a “kind o f m ea n ” v o ice, to remove her clothes. Ag ain, s he complied thinking that “something bad was g oing to happen to [her].” Appellant then moved to the back seat and took his clothes off. He told V.R. to la y down and took a towel from under the seat, placing it

on the back seat under V.R.’s bottom. V.R. testified that appellant then “p u t his hand in [her] vag i n a. ” S h e s t at ed that “[i] t hurted” when he put his fing ers in the “insi de part of [ her] vag ina.”

17Appellant then instructed V.R. to g et on her hands and knees. Once ag ain, V.R. complied.

Acc ording to V.R., appellant then “stuck his penis in [her],” “in [her] vag ina.” She descr ibed fee ling his chest ag ainst her body as he “kept g oing back and forth” and indicated that “[i] t hurted rea lly bad.” At t h at p oint, V.R. told appellant to stop, but he did not. She testified that appellant later “stopped on his own bec ause he was seeing blood” coming from her vag ina. Appellant then g ave V.R. paper towels to wipe herself with. As he did so, he told V.R. to go home a nd take a shower. When V.R. cl ea n ed h erself with the paper towels she saw her blood on them. V.R. testified that afte rwa rds “that part of [her] body

. . . hurted” and she felt “conf used.” Appellant told her to put her clothes bac k on, and he put his own c lothes back on. H e then g ot back in the front seat, tol d V.R.
to stay in the backse at on the floor, started the truck, and beg an dri ving. He dropped her off by a churc h near

her house

. F.F

. testified that appellant had eng ag ed in se x ual activity with her over a period of nine to te n months whe n she was 15 y ear s old. She said that she had sex with appellant more than 100 times, descr ibing the kinds of sex as “[o] ral , an al an d the normal [m eaning vag inal].” She descr ibed an incident when appellant took her to a Motel 6 in San Marc os and “put his fing ers inside [her]

. . . inside [her] vag ina.” She said that she t old appellant to stop beca use he was hurting her and she was bleeding beca use “he was try ing to put his w hole fist inside [her].” F.F

. said that they had sexual encounte rs in appellant’ s truck “a lot of times” and descr ibed an incident when appellant parke d his truc k in a Targ et parking lot in San Mar cos, af ter hours, and put sun shades up to c over all the windows and “did [her] throug h the back,” meaning he penetrated h er an u s with his penis. She testified that “it hurt” and said that she bled, as she did sever al times when they had anal

18intercour se. She also descr ibed the lubricant appellant of ten used whe n they

had ana l intercourse

. As to the indicted offe nse, F.F

. testified about an incident in a churc h storag e building during a churc h service

. She said that she had g one to the storag e to retrie ve water for her mother. Appellant

came into the storag e building and told her to pull her pants d o wn . I nitially F.F

. ref used but appellant locke d the door a nd told her “just to do it.” She testified that she “ did it real quick” and appellant “put his penis in [her] vag ina.” She rec alled that he was not wear ing a condom and “he comed inside” a cup.

Thus, both V.R. and F.F

. descr ibed instances in which appe l l an t penetr ated their sexual org ans with his sexual org an as alleg ed in the indictment. See Tex. Penal Code § 22.011(a) (2)( A). Both g irls provided specific fac ts and sensory details when testify ing about what happene d, wher e it happene d, and (in g ener al terms) when it happene d. Appellant’s contention that the testimony of V.R. or F.F

. is insufficient beca use it was uncorr oborate d is without merit. Be cause both g irls wer e under 17 y ear s of ag e at the time of these offe nses, their testimony alone is sufficie nt to support appellant’ s conviction for these sexual assaults. See Tex. Code Crim. Proc. art. 38.07(a) , (b)( 1); Perez v. State , 113 S.W .3d 819, 838 (Tex. App.—Austin 2003, pet. ref ’d), overruled on other grounds by Taylor v. State , 268 S.W .3d 571, 587 (Tex. Crim. App. 2008). Fur ther, the State has no burden to produce any corr oborating or phy sical evidenc e. See Martines v. State , 371 S.W .3d 232, 240 (Tex. App.—Houston [1st Dist.] 2011, no pet.); see also Lee v. State , 176 S.W .3d 452, 458 (Tex. App.—Houston [1st Dist.] 2004) (“The lack of phy sical or fore nsic evidenc e is a fac tor for the jury to consider in we ighing the evidenc e.”) , aff’d , 206 S.W .3d 620 (Tex. Crim. App. 2006).

19Moreove r, contra ry to appellant’ s claim, there was corr oborating evid en ce in this

case . The sexual-assault examinations of both g irls provided corr oborating medical evidenc e. The sexual-assault nurse who examined V.R. approximately 19 hours afte r the assaul t n oted trauma prese nt in the g enital exam of V.R. The n u rs e d es cribe d acute injuries prese nt in V.R.’s sexual org an—including bruising, tear s, and swelling of the hy men—consistent with V.R.’s descr iption of the s exual assault. The nurse also observe d V.R. and noted t hat s he had difficulty sitti ng beca use she was in pain. The clothing V.R. wore that night, rec overe d during the sexual-assault exam, had blood stains in the crotc h are a. L ikewise, the sexual-assault nurse who examined F.F

. noted trauma prese nt in F.F .’s g enital exam. The nurse observe d sever al well-he aled tear s i n F. F. ’s h y men consistent with previous sexual activity

. She opined that such injuries usually result from blunt forc e trauma. Also, phone rec ords demonstrated that appellant communicated with the g irls, text ing and calling , during the time fra me of the sexual assaults, just as the g irls indicated. I n addition, the g irls’ thera pist descr ibed the common char acte ristics of victims of chi l d s ex ual abuse and testified that b o t h gi rl s exhibi ted some of those behavior s. Also, the testimony of law-e nforc ement office rs showed that a

ppellant was discove red pa rked in his truck w ith F.F. on se vera l occa sions. 7 I n short, viewing the evidence in the light most favor able to the jury ’s verdic t, we conclude that a rational trier of fac t could have found the essential elements of these offe nses bey ond

I n addition, the testimony of V.R. and F.F

. demonstrated that appellant eng ag ed in simil ar 7 conduct with b o t h g irls: sexual activity in his parke d truck afte r cover ing the windows with sun scre ens and penetr ating their sexual org ans until they bled. Eac h g irl’s testimony helped corr oborate that of the other

. 20a rea sonable doubt. Acc ording ly , we overr ule appel l an t ’s ch all eng e to the sufficie ncy of the evidenc e in his final point of err or.

Cleric al Error in Judgme nts Howeve r, we observe that the j udg ments of conviction in this case contain clerica l

err ors. Both judgme nts of conviction ref lect that the “Sta

tu te f o r Offe nse” is “TPC 22.021(a) (2)( A).” Howeve r, section 22.021 of the Penal Code is the statute for ag g ravated sexual assault. The statute for sexual assault as alleg ed in the indictment in this case is section 22.011(a) (2)( A) of the Penal Code. This Court has authority to modify incorre ct j udg ments when the nece ssary i n fo rm ation is available to do so. See Tex. R. App. P. 46.2(b); Bigley v. State , 865 S.W .2d 26, 27–28 (Tex. Crim. App. 1993). Acc ordin gl y , we modify eac h judgme nt of conviction to state that the “Statute for Offe nse” is “22.011( a)( 2)(A) Penal Code.”

CONCLUSION Having overr

uled all of appellant’ s points of err or, we modify the trial court’s judgme nts of conviction as noted a bove and a ffirm the judg ments as modified.

__________________________________________ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Modified and, a s Modified, Aff irmed Filed: Aug ust 22, 2014 Do Not Publish 21