### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 7 -00 019 -CR NO. 03-07-00020- CR

P aul Do ugl as Ar c he r , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF COM AL COUNTY , 207TH JUDICIAL DISTRICT NOS . CR2006 -10 6 , CR2006- 107, HO NORAB LE JACK H. RO B ISO N , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N
After a consolidate d trial of two indictments that a lleg ed sexual offenses a g ainst two child victi m s , a jury

convicted Paul Doug las Arc her of nine counts of indec ency with a child by contac t, see Te x. Pe na l Co de Ann. § 2 1. 11 (a )( 1) (We st 20 03 ), tw o c ounts of ind e c e nc y

wi th a c hil d by exposure, see id. § 21.11(a) (2), a nd seven c ounts of ag g ravated sexual assault, see id. § 2 2. 02 1( a )( 1) (B ), (a )( 2) (B ) ( Wes t Su pp . 2 00 6) . A rc he r e le c te d to have the jur y a sse ss p un ish me nt. The jury assessed the maxi mum ter m of incar cer ation for eac h offe nse—twenty y ear s for e ach c ount of indec ency by contac t, te n y ear s for eac h count of indece ncy by exposure, and life for eac h count of ag g ravated sexual assault. The trial court ruled that eac h sentenc e in c ause number CR2006-106 will be serve d concur

rently , as will e ach sentenc e in c ause number CR2006-107, but ruled that the
se nte nc e s in

CR2 00 6- 10 7 w ill be se rv e d con secut ive ly to t ho se in C R20 06 -1 06 . A rc he r a pp e a ls, arguing in f

ive issues that the trial cour t erre d by limit ing his que stioning duringvoir dire, or dering2

that the sentenc es in CR2006-107 run consec utively to those in CR 2 0 0 6 -1 06, admitting hea rsay evidenc e fr om an i nvestig ating office r on two occ asions, and admitting te stimony conce rning a study that did not meet the lear ned-tre atise exception t o the hea rsay rule. We will aff

irm the tr ia l c ourt ’s jud g me nt.
BACK GR OUND

On J an u ar y

1, 2006, Deputy

Mike Smit h of the Comal County Sheriff’ s Offic e responde d to a 911 call place d by J ennife r Ander son. Ander son told S mith that Archer had touche d her e ight- y ear -old daug hter, M.A., in an imprope r mann er . Anderson also relate d that sever al months earlier , M.A. told her that Ar cher had touche d twelve- y ear -ol d C
. A. , Ar cher ’s niece and M. A. ’s fr ie nd

and ne ig hb or , in

an im pr op e r m ann e r. Smith the n in te rv ie we d M .A ., wh o to ld h im that Arc her ha d touched he r “pr ivate par ts” at Arc her’ s house “once befor e Ha lloween a nd once or tw ic e a ft e r. ” M. A. a lso state d to Smit h th a t A rc he r h a d to uc he d h is n ie c e C.A . Sm ith cal led his office ’s cr iminal investigations depa rtment and c hild protective ser vices. Be cause of the a lleg ations by J ennife r Ande rson and M.A. c oncer ning A rche r’s touching of C.A., Smith nex t travele d to C.A
. ’s h o u s e, which w as a f ew house s down from the Ander sons’ house on the same stree t. When Sm ith arrived, he discussed the a lleg ations conce rning C.A. wi th C. A.’ s p are nts , Ra nd y and Gi na Ar c he r. Rand

y and Pa ul A rc he r a

re br oth e rs . Sm ith
a sk e d w he re C.A . w a s; h e r p are nts re pli e d th a t sh e wa s at Pa ul A rc he r’ s h ou se , w hic h w a s a lso located on the same street. Smit h instructed R andy Arc her to retrie ve C .A. and bring her ba ck to the residenc e.T est imony indicated that Ar cher

acc used Randy

Ander son, M.A.’s father, of ha ving 1 imp ro pe r se xua l c on ta c t wi th C.A
. C.A
. de nie d that An de rs on ha d e ve r tou c he d h er i mp roper ly during her te stimony , and no evide nce pr esente d at trial cor roborated Arc her’ s alleg ation. 3 Whe n C. A. arr ive d ho me and sa w the po lic e of

fi c e rs , s he sta

rt e d c ry ingand tr ie d to walk inside the house. Smith testified, “And he r par ents said, ‘I t’s okay . They ’re here to talk to y ou. [M.A
. ] h a s ta lk e d to th e m. ’ Wh e n th e y to ld h e r th a t, s h e s ta rte d c r yin g mo r e an d w e n t ah e a d and
we nt i nto the ho us e.” Smith te sti fi e d th a t he wa s una ble to h a ve any

me anin g fu l in te ra c tio n w ith C.A. that evening
.

L ater that evening , afte r De puty Smit h left the home of Randy and Gina A rche r, police we re c alled to re turn to the residenc e. Serg eant Clint J acobs arr ived at the house hold to find Randy and Gina A rche r wa iting outside. The A rche rs, who appe are d to be ver y upset, told J acobs that Paul Arche r had c ome to their home a fter Smith and the other deputies left. Jacobs testified,
Th e y sa id h e wa s p a c ingaro un d, sa yingthi ng s th a t the y c ou ldn ’t un de rs tand . Sa id h e wa s wring ing his ha

nds. He e ventually

—they said that he we nt in and woke [C .A.] up, who was sleeping , and had a brief c onversation with her.

. . . . They said that he tol d [ C.A.] t hat he would have neve r touche d [M.A.] if the other g entleman who was involved in the c ase ha dn’t touched he r, and also said that he 1 [ ] would never

be able to associate or

Ithink hold her ag ain, was the quote. Randy and Gina A rche r also told Serg eant Jacobs that Sue M o re n o , Randy Arc her and Paul Arc h er ’s sister, had c ome to their home a fter the police lef t and said that she “ was
c on c e rn e d a

bo ut P a ul A rc he r” be c a

us e of his “ e rr a tic ” and

“ sc ary ” beh avi or. Th e Ar c he rs tol d4

J acobs that Mor eno was “ver y distraug ht,” “continually apolog izi ng ,” and sa ying that she “ha d never been a war e of w hat had ha

ppened.” J acobs a sked the Ar cher s to contact More no and have her return to t he house so that sh e c ou ld b e qu e sti on e d. Jac ob s te sti fi e d th a t wh e n Mo re no arr ive d, sh e wa s c ry ing and dis tr a ug ht, saying that she “ne ver kne w what was g oing on.” Moreno te stified that she sig ned a statement that nig ht, in whic h s he wr ote , “ On the e ve nin g of

Janu ary 1s t, 2 00 6, my

br oth e r P a

ul A rc he r s tate d to
me that he had done some bad things to [M.A.] . . . and the guy acr oss the street ha d done some ba d things to [C .A.] . . . . This occurre d at his home . . . . He w as wring ing his ha nds and pac ing.” At tr ial , Mo reno c ha

ng e d h e r s tor

y : sh e te sti fi e d, “ Ido n’ t be lie ve Ihe ard thi s st a te me nt t

hat I wr ote
corr ectly . Ibelieve that what my brother ha d sai d t o m e wa s , ‘They said that Idid bad things to [M.A.] .’”

Shortly ther ea ft er , De t ec t i v e T o m m y W ar d o b t ai n eda w arrant to search Paul Ar cher ’s house for porno g raphic videotapes, c ondoms, and condom wra ppers. When Ward a

nd another de te c tiv e dis c ov e re d g ir ls’ pa nti e s and an ora

ng e bathi ng su it in Ar c he r’ s roo m, t he y imm e diate ly halted the s e ar c h in o r d e r to o b ta in a n e w w ar r an t th a t c o v e r e d th o s e it e ms . A f te r o b ta in in g the
se c on d w arr ant, War d s e ize d th e thr e e pa ir s o f p anti e s an d the t wo -p ie c e bathi ngsu it from Ar cher ’s room.

The a rticles of c lothing conf

iscated in the se ar ch of A rche r’s home w ere sent to a la bo rator y fo r t e sti ng . D NAana ly sis ind ic a te d th a t the bo tto m pi e c e of the tw o- pie c e bathi ngsu it contained sta ins where sperm ce lls were disc overe d and stains that wer e co n s i s t ent with mix tures
o f b o d i l y f l u i d s . T h e S t a t e ’ s D N A e x p e rt t e s t i f i e d th a t t o a

r e a s o n a b l e d e g r e e o f

s c i e n t i f i c c e rt a i n t y,5

Arc her w as the sourc e of the sperm c el l s : “T h e probability of selec ting a

n unrelated per son at random who c ould be a sourc e of this DNA pr ofile is approximately one in 3.682 quin t i l l i on for Cauca sians . . . .” F urther, ne ither Arc her nor C.A. could be excluded as contributors to the stains that w e re mixture s. No sp e rm c e lls we re loc a te d o n a

ny of the thr e e pa ir s o f p anti e s, bu t e a c h p a ir contained biologica l materia l that was consistent with a mi x ture—ne ither Archer nor C.A. could be
e xclu de d a s c on tr ibutor s to tho se sta ins
.

Arc her w as ar

rested a nd tried o nt wo i n d i ct m en t s . C au s e n u mb er C R 2 0 0 6 -1 06 rela

ted to offense s ag ainst M.A., char g ing six counts of indece ncy with a child by contac t a nd one count of ag g ravated sexual assault. Cause number CR2 0 0 6 -1 0 7 related to offe nses ag ainst C.A., char g ing two counts of indec ency by exposure, three counts of indec ency by contac t , an d six counts of ag g ravated sexual assault.

At tr ia l, b oth

vic tim s te sti fi e d. C.A
. state d that on De c e mbe r 3 1, 20 05 , s he wa s w ith her unc le Paul Arc her, whom she had aske d repe atedly to ge t her some f

irewor ks, at Arc her’ s house. C
. A. t estified that Ar cher “made [her] do som ething bad” be fore he would ag ree to purcha se the firew orks: she said that Ar cher told her that “w e had to do it in order to ge t the firew orks”—C.A. understood “do it” t o m ean “ have se x .” She stated that Arche r re moved her shirt, pants, and
un de rw e ar and tr ie d to tou c h he r “ bo ob s. ” C.A
. we nt on to sa y that Ar c he r tou c he d h e r “ bo ob s” wi th his hands and that he a lso touched her “we e-w ee” with his hands. She testified t hat Archer “ moved his finge rs” while touc hing he r “w ee- wee ” and that he touched her “ wee -we e” w ith his t ong ue and “starte d licking.” C.A. stated that Arc her removed his pants and expos ed his “wie ner.” She testified that Arc her ma de her

touch his “wiene r” by

curvingher f

inge rs around it and moving he r hand up6

and down. Ar cher

also touched her “wee- wee ” with hi s “wiene r” that night. Af ter the e ncounter , Ar c he r a llo we d C. A. to s ho ot o ff so me of the fi re wo rk s. C.A. also testified about anothe r i n ci dent that occ urre d at Paul Arc her’ s house on Dec ember

23, 2005. She said that she aske d Arc her to rent her a movie, which he did. She testified that when he returne d with the movie, she we nt with him t o his room, where the two “had to have sex.” C.A. testified that Arche r re moved all her clothes and a ll his clothes
. Arc her touc hed her “we e-w ee” and her

brea sts, and he made her touch his “ wiener .” She also stated that Arc her touc hed her “ wee -we e” w ith his “wiene r,” although he did not put it inside her “wee -we e.” C.A. said that afte r this occur

red, she g ot to watch the movie a nd eat homema de popcor n. C.A . te sti fi e d th a t A rc he r t ou c he d h e r “ we e -w e e ” wi th h is “ wi e ne r” on c e or tw ic e in 2005 and that he had also done it prior to 2005. She re membere d another incident on New

Yea r’s Eve in 2003, whe re A rche r touche d her “wee-w ee” with his tongue a nd “starte d licking up a

nd down.” On this occ asion, Arc her touc hed the “ inside” of he r “butt” with his “wiene r.” He also put his “wiene r” in he r mouth, and “spe rm” c ame out of his “w iener .” C .A. testified that this was not the first time that he put his “wiene r” in he r mouth.

C.A. said that she first beg an having these kind of encounte rs with Arche r whe n she
was e ight y ear s old. C.A. t est ified that Arc her of ten buy s her c andy

and that “[y ]ou need to have sex” in order to g et the candy
. C.A. also said that Arc her made her w atch movies of pe ople having sex, which made her

fee l “uncomfor

table.” C.A . te sti fi e d to an in c ide nt whe re Ar c he r tou c he d he r a nd fo rc e d h e r t o to uc h h im befor e she w as allowe d to go w ith her fr iend M.A. to L anda Park. C.A. also testified about “thre e7

or four ” trips to Dollar Gene ral, wher e Arc her w ould buy her dolls and other

toy s. She stated that M.A. acc ompanied them on one of these trips. C.A. testified that Arc her pur chase d an ele ctric motor
sc oo te r a nd a thirty -s ix-i nc h te le vis ion fo r h e r. C.A . a lso te sti fi e d a bo ut a tr ip t hat sh e too k to Corpus Christi wi t h Ar ch er, w here they stay ed alone toge ther in what she descr ibed as “ a ver y uncomforta

ble tent” on the be ach. She ta lked about how Arc her would take he r to Sea World, Mr. Gatti ’s , a nd Sc hli tte rb ahn
. C.A . sta te d that Arc he r is he r favo ri te un c le be c a us e he “ a lw ay s sp oil s” her w ith “candy

and stuff.” C.A . te sti fi e d th a t sh e ha s an or ang e bathi ng su it, and sh e ide nti fi e d th e bathi ngsu it from which the DNA samples were taken a s her bathing suit. She also identified two of the seized pairs of pa

nties as her

own and testified that the other pa ir of panties r ec o v er ed by police belong ed to M.A.

Cristina Salley , the s exual assault nurse examiner who e x amined C.A., also testified. She related the history

that C.A. g ave her as part of the e x amination, which wa s larg ely consistent with he r trial testimony
. Salley testified that she did not discove r any trauma in C.A.’s e x amination, b u ts t at edt h at s h e d i d n o t ex p ec t t o fi n d t ra u m a b ec au s e o n e s tu dy h as s h o wn t h at a l ar ge p er ce n t age of examinations conducted on f emales w ho have be en ver ifiably vagin al l y

penetr ated show no g enital trauma
.

M. A. te sti fi e d th a t sh e of

te n p lay e d w ithC.A . at A rc he r’ s ho us e , wh e re the y wo uld also watc h movies and have homemade popc orn. She testified that one time a round Christmas 2005 Arc her made her “[t] ouch his pr ivate spot.” She said that she saw his “ private spot” a nd had to touch it by curlingher f

inge rs ar ound it. M.A. stated that Ar cher touched he r on her

“private spot where8

[she] pee[s]” with his hand. M.A. testified that C.A. was in the room duringthis encounter. When asked whether Arc her did some thing to C.A. on that occa sion, M.A. replied, “He did the same thing as he did to me.” M.A. testified that she sa w Arc her do this to C.A. M. A. s a i d

t h a tA r c h e r

t o u c h e d h e r “ p r i v a t e s p o t ” a th i s h o u s e o r C
. A
. ’ s h ou se “[a]bout five tim es.” She had to touch hi s “private s pot” around “five or six ” times; eac h time she saw his “pr ivate spot.” M.A. testified that “just once ” she “ had to lick his private spot just a little.”

M.A. testified that she ha d to touc h Arc her in or der to g o to L anda Park with him and C.A., which she “re ally wanted” to do. She stated that she also went to Dollar G ener al with Arc her and C.A. and that Arche r boug ht them dolls and candy there ; M.A. testified that she had to touch Arc her at his house before they could g o. J ennife r Anders o n testified about M.A.’s outc ry to her on January

1, 2006. She te sti fi e d th a t M. A. and

C.A . w e re fr ie nd s a

nd that th e y wo uld of te n s pe nd tim e wi th A rc he r at hi s house. Jennifer Ande rson testified that a few months before J anuar y 2006, M.A. related to her that C.A. said that Arc her w as touchingher va g ina, but Ander son testified that she “didn’ t think that he could do something like that” bec ause “ he see med to be a ve ry nice pe rson.” Randy Arc her te stified that Paul A rche r came to his house on J anuar y 1 and that “he
wa s wr i n gi n g his hands and he sa id he would neve r have touched [M.A.] i f Randy Ander son wouldn’t have touched [C.A.] .’”

Arc her did not testify . He c alled one witness, the custodian of re cords at the hospital wh e re C.A . w a s e xami ne d, in o rd e r t o intro du ce C.A .’ s me dic a l r e c or ds fr om t he Janu ary

5 v isi t. Arc her a lso introduced a public rec ord showing that C.A.’s step-brothe r is a reg istered se x offe nder.Both C.A. and M.A. wer e questioned about contac t w ith C.A.’s step- brother. B oth children 2 de nie d h a vin g e ve r b e e n to uc he d im pr op e rl y by him
. 9 Arc her’ s attorney

argued that childre n make up stories and that C.A. may have be en victimized by h e r s te p - b r o th er. The jury

found Arc her guilty

of all eig hteen c ounts and assesse d the maxim um 2 term of inca

rce ration for

eac h count. The tria l court orde red that the sent ence s imposed for the offe nses committed a g ainst C.A. will be serve d consec utively to the sentenc es for the o ff enses committed ag ainst M.A. This appea l followed.
DI SCU SSIO N Voir Dire I n his first issue, Arche r complains that the tria l c ourt improperly limit ed his voir dir e questioning by

ref using to let him ask a commitment question conce rning whether the prospec tive jurors could c onsider probation even if the fac ts e stablished that Arc her is guilty . Arc her c laims that the trial cour

t “s u s tained the State’ s objection that the question was a n improper c ommitm ent question.” The f

ollowing e x chang e occ urre d during voir dire: [Defense Counsel] : All rig ht. I f t he facts established that the defendant is g uilty , can y ou consider pr obation? [The State] : That’s an imprope r commitment question beca use— Th e Court : I t’ s n ot p ro pe r t o s oli c it a c omm itm e nt t o a

ny se t of fa c ts. [De fe ns e Couns e l]: A ll r ig ht. The Court: Hy

pothetical or othe rwise.10

[Defense Counsel] : I s there any member of the jury panel who coul d n o t co nsider a fu ll r ang e of

punis hme nt i n th is c a se , in c lud ingpr ob a tio n, ba se d u po n a ny fa c ts?
Ev e n if the tr ia l c ourt

e rr e d b y re fu sin g to al low Ar c he r t o a sk the qu e sti on , w e sti ll mus t ov e rr ule Arc her’ s first issue beca use the e rror

was ha rmless. See Tex R. Ap p . P
. 44.2 (b) ( “Any [non c on sti tut ion a l] e rr or , de fe c t, ir re g ula ri ty , or va ri anc e that do e s n ot a ff

e c t su bs tanti a l r ig hts mus t be dis re g ard e d. ” ). Ar c he r w a s a llo we d to a sk his ne xt que sti on , w hic h w a s su bs tanti a lly

sim ila r t o the prior que stion and elicited the same information soug ht by the question at i s sue—whe ther the prospec tive jurors could c onsider probation as part of the ra ng e of punishment. The only person who responde d to that question in the neg ative wa s excused from the pa nel by ag ree ment. F u rth e r , e ar li e r

in th e v o ir d ir e qu e s ti o n in g , th e p r o s e c u to r f o r th e St a te a s k e d

the panel the f

ollowing que stion:
An d s o th e a

pp ro pr iate qu e sti on

that e a c h o f you

ne e d to c on sid e r at th is m ome nt i s whether , in a proper case in w hich the law allows it and the fa cts justify it, whatever those fac ts may

be that y ou haven’ t hear d y et, but c an y ou fully and fairly consider that entire rang e of punishment, including both the minimum and the maximum as Idescr ibed? And that also does include probation only at y our re commendation as j u r o r s i f t h e p u n i s h m e n td o e s n o te x c e e d t e nye ar s i nt h e p e n i t e n t i ar y. The only prospec tive juror who answe red that she could not c onsider the full rang e of punishment
was t h e same one who answe red A rche r’s que stion in t he neg ative and who was, a s noted above , excused from the pa

nel by ag ree ment. Be cause the question that Arc her c omplains that he was not allowed to ask w as aske d by both Arc her and the S tate and answe red by the panel, we hold that any
err or wa s harmless and ove rrule A rche r’s fir st issue.11

Consecutive Sente nces

I n his second issue, Ar cher argues that t h e t ri al co u rt err ed by order ing that the sentenc es in ca

use num ber CR 2006-107 be served c onsecutively to those in cause numbe r CR2006- 106, urg ing that no statutory authority exis ts for such a

n order . We disag ree . Arc her ba ses his argument on the languag e of se ction 3.03 of the Te x as Penal Code, wh ic h p ro vid e s,
I f t he a c c us e d is fo un d guil ty of mor e th an on e of

fe ns e ari sin g ou t of

the same criminal e p i s o d e, the sentence s may run conc urre ntly

or conse cutively

if ea ch sentenc e is for a

conviction o f
. . . an o ff ense . . . unde r Section 21.11, 22.011, 22.021, 25.02, or 43.25 committed ag ainst a victim y oung er tha n 17 y ear s of ag e at the time of the c ommissi on of the off ense . . . .
Tex. P enal Code A nn. § 3.03(b)( 2)(A) (West Supp. 2006). Arche r does not dispute that the offe nses
arose out of t he same criminal episode; rathe r, he argues t hat because the statute uses the wor ds “a vic tim ,” it d oe s n ot c on te mpl a te c on se c uti ve sent e nc e s f or mul tip le of

fe ns e s c omm itt e d a g a ins t mul tip le vic tim s. B ut a s A rc he r n ote s in his br ie f, sev eral c ourt s o f a pp e a ls h a ve re

je c te d th is int e rp re ta tio n o f s e c tio n 3 .0 3, po int ingou t tha t the pla in l angua g e of the statut e a llo ws se nte nc e s to
run conse cutively

“if each se ntence is fo r a c on vic tio n o f .
. . an o ff

e ns e . . . c omm itt e d a g a ins t a victim young er than 17 y ear s of ag e,” id. (empha sis added), w hich clea rly contemplates c onsecutive
s en t en cing for multiple offe nses committed ag ainst multi ple victims. See Da le v . S tate , 17 0 S.W.3 d 797 , 800 –0 1 (T e x. Ap p. —F or t Worth 20 05 , n o p e t.) ; Sa laz ar v . S tate , 127 S.W .3d 355, 363–65 (Tex. App.—Houston [14t h Dist.] 2004, pet. re f’d) . “The re is no languag e in the sec tion
su pp or tin g a pp e lla nt’ s p re fe rr e d int e rp re tatio n that a ll of the se nte nc e s mus t be fo r o ff e ns e s a g a ins t12

the same vic tim. To the contrar y , so long a s the victim of eac h of the of fe n s es was under 17, the require ments of the statute’s pla in lang uag e ar e cle arly met.” Salazar , 127 S.W .3d at 364–65. Her e , A r c h e r

w a s c o n v ic te d

o f e ig h te e no f

f e n s e s . E a c h o f

f e n s e w a s u n d e r

s e c tion 21.11 or sec tion 22.021 of the pena l code. Each offense w as committed ag ainst either C.A. or M.A ., both of whom wer e y oung er than sevente en y ear s old at the time of the c ommissi on of ea ch off ense. Thus, the trial cour

t clear ly had the authority under section 3.03 to or der that the sentenc es be se rved
consec utively , and given the heinous nature of t he crimes, it is not surprising that it chose to do so. We overrule Arc her’ s second issue.
Adm ission of H earsay

I n his third and fourth issues, Arc her ur g es that the trial c ourt err ed by admitting hear say tes t i m o n y o f an inve stigating of fice r on two occ asions. Arc her c omplains about the fo llo wi ngtw o e xch ang e s: Q: Other than wh at s h e told y ou that y ou just testified to, was there any other complaint that [J ennife r Ande rson] made? A: Yes, sir. Q: An d w hat w a s ju st the ba sic natur e of that c omp la int ? [ D e f e n s e C o u n s e l ] : J u d g e , I’ m g o i n g t o o b j e c tt o t h e h e ar s ay. [ T he State]: J udg e, at this time, I ’d off er it not for the truth of the matter asser ted; just based on the i nformation acted upon by this officer

for his future actions. And Iassure y ou that Ms. Anderso n will be here as a w itness, as well as [M.A.] and [C.A .], a ll o f w ho m w hic h [si c ] the c omp la int s b a sic a lly wi ll b e a bo ut. Th e y

wi ll t e s t i f y. [ D e f e n s e C o u n s e l ] : T h a t ’ s s t i l l

—t h e s u b s t an c e o f w h a ts h e t o l d

t h e m i s s t i l l h e ar s ay.13

The Court: I t is he arsa

y . Howeve r, for

the purposes of

just—it ’s not being admitted fo r t he tr uth of any of the c on te nt o f t

he sta te me nt; it’ s b e inga dmi tte d b e c a us e thi s of fi c e r he ard it an d took c e rt a in ac tio ns ba se d on that inf or matio n. So k e e p th a t in mind when y ou hear what he’s about t o say . I t is hearsa y . I t’s not admissible for the truth of the matter

asser ted within the statement. I t’s admissible solely to show why thi s o ff ic e r d id whate ve r h e did

on c e he he ard

it. Q: I f you wo uld , jus t te ll the la die s and g e ntl e me n of the jur y , w hat w a s th e e nti re ty of the c omp la int ? Ag a in, jus t th e ba sic s. A: Iarr ived on the sce ne and me t with J ennif er Ander son. She told me that her daug hter— s ever al months ag o, her da ug hter [M.A.] had told her that Paul Arche r had touched his niec e, [C.A.] , on sever al occ asio n s , an d that had [sic] made he r touch him. Then she told me that she didn’t re port it. On the 1st of J anuar y , she found out that—[M.A.] told her t hat she ha d also bee n touched a nd had touche d Paul Arche r.

. . . . Q: And g ener ally

speaking , ag ain, to further y our investig ati o n , wh at d id [ M.A.] relate to y ou? [De fe ns e Couns e l]: Judg e , o nc e a g a in, I ’m g oin g to o bje c t to the he ars ay on thi s. The Court: Ag ain, this is not be ing admitted for the pur pose of the tr

uth of the matter a sse rt e d w ith in [M .A.]’ s st a te me nt; it’ s si mpl y be ingsu bmi tte d to sh owwhy

thi s of fi c e r t oo k w ha

te ve r a c tio ns he too k o nc e he he ard it. Q: You may

answe r the que stion. A: Okay
. Is a t d o w na t t h e ta b le w it h[M
. A
. ], a s k e d

h e r w h a t w a s g o in g o n, explained who I was, tol d her that we were there to help her, a nd she told me that Mr. Arc her ha d touched he r once befor e Ha lloween a nd once or

twice a fter. And she didn’t know t he dates, so we pulled out a calendar and I would show her by holiday
. I ’d say , “Well, was it befor e or afte r Thanksgiving ? Be fore or af ter Christmas? Be fore or after Halloween? ” And s he was able to recog nize Halloween. She said it happene d once be fore Hallowee n and once afte r.
Arc her argues, re ly ing on Hi ll v . S tate , 817 S.W .2d 816, 818 (Tex. A pp.—Eastland 1991, pet. re f’d) , that th e of

fi c e r’ s st a te me nts a

bo ut what Jennif

e r A nd e rs on

and M. A. tol d h im w e re ina dmi ssi ble14

beca use Arc her “neve r challeng ed the methods of investigation e mploy ed by Deputy S m i t h
. No objection was made that [Archer ] wa s improperly arr ested or that any sear ch was conducte d without probable cause . There fore the State was under no obligation to explain Deputy Smit h’s ac tions, and the use of he arsa

y to expl ain his actions ca

nnot be justified.” The c ourt of criminal appea ls has held that a police of fice r “should not be pe rmitted to r elate historical aspec ts of the case , reple te with he arsa y statements in the form of c omplaints and repor ts on gr ounds that she was e ntitled to tell t he jury the information upon which she acte d.” Sc ha ffe r v . S tate , 777 S.W .2d 111, 114–15 (Tex. Crim. App. 1989). When a n “off icer ’s actions (e .g ., an ar rest or a sear ch) are not put into que stion be fore the jury , testimony that the offic er a cted upon ‘information rece ived’ or w ords to that aff ect [sic] shoul d be suff

icient.” Id. at 115 n.4. We hold that the err or was harmless for thre e re asons. See Tex. R. App. P . 44.2(b) (“ Any [non c on s t i t

ut ion a l] e rr or , d e fe c t, i rr e g ula ri ty , o r v ari anc e that do e s n ot a ff e c t su bs tanti a l r ig hts must be disreg arde d.”).

First, the same information wa s put before the jury withou t o b

j ection throug h the testimony of Jennifer Ande rson and M.A. Le da yv . S tate , 983 S.W .2d 713, 717 (Tex. Crim. App. 19 98 ) (“ I t is we ll e sta

bli sh e d that the imp ro pe r a dmi ssi on of e vid e nc e do e s n ot c on sti tut e re ve rs ibl e
err or if the same fa cts are shown by other e vidence which is n o t challeng ed.” ( quoting Cro c k e r v . S tate , 573 S.W .2d 190, 201 (Tex. Crim. App. 1978))). J ennife r Ande rson testified that M.A. told her months bef o re J an u ary

2006 that C.A. complained that Ar cher was touchingher
va g ina , th a t M. A. tol d h e r on Janu ary 1 th a t A rc he r h a d to uc he d h e r v a g ina , a nd that sh e re late d th is15

inf or ma tio n to the po lic e , a ll wi tho ut ob je c tio n. M. A. te sti fi e d wi tho ut ob je c tio n a bo ut f ive or six i n s t an c e s o f

i mp r o p e r t o u c h i n g i nf

ar m o r e d e t a i l t h ant h e o f

f i c e r ’ s t e s t i m o n y. Second, th e tr ia l c o u rt i n s tr u c te d th e ju r y th a t t h e te s ti mo n y

w a s “ s im

p ly b eing submitt ed to show why

this officer

took whateve r ac tions he took once he hear d it.” Whil e the testimony should not have been admitted for any purpose, this instruction limit ed the harm from the
err oneous admission of the testimony by prohibiting the jury

from conside ring it for the truth of the matter a sser t ed. Se e Mo or e v . S tate , 882 S.W .2d 844, 847 (Tex. Crim. App. 1994) (holding that appellate courts must presume that instructions to t he jury “ar e ef fica cious”). Third, over

whelming evidenc e of Arche r’s guilt was introduced at t ri al. See W esb ro ok v . S tate , 29 S.W .3d 103, 119 (Tex. Crim. App. 2000) (“[T]he prese nce of overw helming evidenc e supporting the finding in question ca n be a f actor in the evaluation of harmless er ror.” ). Evide n c e s u

p p o rti n g th e v e r d ic t i n c lu d e s th e te s ti mo n y o f C. A
. an d

M
. A
. ; Je n n if

e r A n derson’ s testimony about M.A.’s outcr

y ; the statements of Randy Arc her, G ina Arc her, a

nd Sue Moreno that Paul Arche r told them that he only touched M.A. beca use Randy Ander son had touche d C.A.; the DNA test re sults that found semen c onsistent with P aul Arc her’ s DNA a nd biologica l material consistent with C.A.’s DNA on the bottom piece of C.A.’s bathingsuit, which was found in Ar cher ’s bedroom; and othe r phy sical evide n ce fo u n d in Arche r’s be droom that corr oborate d C.A.’s and M.A.’s testimony , including Mr . Gatti’s “play tickets,” a

doorstop t h at C.A. testified that Arc her would use t o lock hi s bedroom door befor e he abused her, pornogr aphic videos that may have be en the ones that C.A. testified that Ar cher made he r watch and that made her f eel “ uncomforta

ble,” a nd the bathing suit and panties that one of fice r testified c onstitut ed “tr ophies” that c hild molesters often16

keep. T hus, we hold t h at any err or that wa s prese rved w as har mless and over

rule Ar cher ’s third
and fo ur th i ssu e s. Expe r t T e st im ony

I n h is f if th i ssu e , A rc he r c laim s th at the tr ia l c ourt e rr e d b y a dmi tti ng , o ve r h is objections, the following testimony by sexual assault nurse examiner Cristina Salley conce rning her finding no trauma to C.A.’s g enitals in her e x amination of C.A.: Q: Do y ou—is there a perc entag e of—that y ou—best y ou can c ome up with of how many victims actually

have a normal exam—how many child victims actually

have a no rm a l e xam? A: I t’ s c los e to 85% of chi ldre n e xams have a no rm a l e xam [s ic ], c hil dr e n in adolesc ence . Doctor K ellog g did a study a couple of y ear s ago . S h e’s in San A n t o n i o , an d

s h e ’ s b e e nd o i n g t h i s f

o r o v e r 2 5 ye ar s w h e r e s h e a c tu a l l y— [Defense Counsel] : J udg e, I ’m g oing to objec t to any testimony

about what Doc tor Kellog g said. She’s not here to testify . I t’s a hea rsay objection. The Court: I ’m waiting for a response from the State. Q: M s . S al l ey , ar e y o ufa m i l i ar wi t h Do ct o r K el l o gg? A: Ye s, Ia m. Q: And wher e does D octor Ke lloggoffice out of? A: Do c tor

Ke llo g g is i n Sa

n A nto nio . S he is at— they jus t c ha ng e d th e ir

name to Child S afe . I t w as the Alamo Children—Alamo City —or Alamo Advoc acy

Center, Children’s Advoca cy

Center in San Antonio. Q: And is Doctor Ke lloggan expert in child sexual abuse? A: Ye s, sh e is. Q: An d d oe s sh e have —th is D oc tor Ke llo g g is a

la dy . Co rr e c t?17

A: Ye s. Q: Na n cy

Ke l l o gg? A: Uh-huh. Q: And does Doc tor Kellog g have writings that she herse lf has wr itten? A: Ye s. Q: Does she ha

ve ver y many of them, to the best of your knowledg e? A: Ye s, sh e do e s. Q: And is she re nowned a s an expert in this area ? A: Yes, she is. She ha s over 25 y ear s’ experienc e. [Defense Counsel] : Same objection, J udg e. I don’t believe it qualifies as a le arne d treatise. The Court: Over

ruled. Q: So if y ou can g o ahea d and tell us about t he study y ou’re ref

err ing to f rom Doctor Ke l l o gg. A : O k ay. T h i s p art i c u l ar o n e h a s t o d o w i t h a d o l e s c e n t s w h o ar e p r e g n an t
. O k ay. So the re ha s be e n pe nil e va g ina l pe ne tr a tio n a nd the y ’r e pr e g na

nt. I n 8 3% of

tho se case s, th er e is no trauma the re. So that just goe s to further c larify that we don’ t expect to find trauma whe n we do e x ams on children.
Arc her a rg ues t h at t he State did not establish the pre dicate f or the Ke lloggstudy ’s admissibili ty

under the lear

ned-tre atise exception to the hea rsay rule. Arc her a lso urg es that eve n if the Kellogg study wer e admissi ble under the l ear ned-tre atise ex ception, S alley ’s t estimony did not comply with the require ments of the exception.18 Texas Rule of Evidence 803(18) provides that the following evidenc e is not excluded by the hea rsay rule:
To the extent called to the attention of an e x pert witness upon c ross-examination or relied upon by

the expert in direct e x amination, statements containe d in pu b l i s hed treatises, periodica ls, or pamphlets on a subject of history , medicine, or other scie nce or art e sta bli sh e d a s a

re lia ble a uth or ity by the te sti mony

or a dmi ssi on

of the wi tne ss or by other e x pert testimony

or by j u d i ci al not ice. I f admitted, the stateme nts may be re a d in to e vid e nc e bu t ma y no t be re c e ive d a s e xhibi ts.
Te x. R. Evi d. 80 3( 18 ). Ar c he r a rgue s th a t th e tr ia l c ourt

e rr e d b y a dmi tti ngthe te sti mony

be c a us e (1) the State failed to make “a showing that the writing had been published in a manner rec og nized by ” the e x ception, and ( 2) “Salley did not read a

portion of the Kellogg study into evidenc e; rather, she summarized the conclusion rea ch[ed] in t he Ke lloggstudy .” The State appar ently conce des that the lear ned-tre atise exception was not met, but urg es that as a n expert witness, Salley

was pe rmitted to rely on the Kellog g study

and t o testify

about the mater ials that she re lied on, citing T exas Rule of Evidenc e 702.

We revie w a trial court’s evidentiary ruling for an abuse of discretion. Lop e z v . S tate , 86 S.W. 3d

22 8, 23 0 ( Te x. Cr im. Ap p. 20 02 ). A tri a l c ourt a bu se s it s d isc re tio n w he n it s r uli ngfa lls outside the zone of re asonable disag ree ment. Id.

Texas Rule of Evidence 705 provides that an expert witness “may testify in terms of opinion or infere nce and g ive the expert’s rea sons the ref or without pr ior disclosure of the underlying fac ts or data.” Tex. R. Evi d. 705. An expert witness may base he r opinions o n
— an d testify about—fa cts or data

that are inadmissible, as long a s the information is of a ty pe rea sonably

relied on by experts in her field. J

oin e r v . S tate , 825 S.W .2d 701, 707–08 (Tex. Crim. App. 1992).19 Salley was qua lified by her know ledg e, skill, ex perie nce, tr aining , and educ ation as an expert witness in the field of child sexual abuse. See Tex. R
. E v i d . 702. She testified that she relied on the Kellog g study in rea ching her opinion that an ex amination’s fa ilure to uncove r g enital trauma doe s not indicate that sexual activity has not occ urre d. There fore, the trial cour t did not abuse its discre tion by

allowing Salley

to testify about the re sults of the Kellog g study
. Ev en if th e tr ia l c ourt

did e rr , w e wo uld

ho ld t hat th e e rr or

wa s h arm le ss b e c a

us e substantially

simil ar te stimony

was e licited from this witness multi ple times without objection. See Leday , 983 S.W .2d at 717 (“ I t is well established that the improper admission of evidenc e does not constitute reve rsible er

ror if the same f

acts a re shown by

other e vidence which is not challeng ed.”)
. Sa lle y te sti fi e d th a t “ [i]t’ s nor

ma l to have a no rm a l exam ,” that “if tr a uma ha d oc c ur

re d, the re is a possi bility

that would heal ve ry

quickly without any

scar tissue left,” that findinginjury is “more unusual than finding a norma l exam,” and t h at 85 to 95% of sexual assault victims have norma l exams, all without objection. We overr ule Arc her’ s fifth issue.
CO NC LU SION Ha vin g ov e rr

ule d A rc he r’ s is su e s o n a pp e a l, w e a ff

ir m th e tr ia l c ourt ’s jud g me nt.

___________

_ _ _ _ _ _ _ _ _ _ _ _ _ _____________ Diane H enson, Jus tice Be fore Chief J ustice L aw, Justi ces Pury ear and He nson Affir med Filed: August 17, 2007 Do No t Pu

bli sh