State ’ s Motion for Leave to File Sur

- Reply Brief Denied; Affirmed and

Memorandum Opinion filed October 5 , 2021
.

In The 

## Fourteenth Court of Appeals

NO. 14

- 20

- 00160

- CR

FRANCISCO BRALLAN ANAVISCA , Appellant
V.
THE STATE OF TEXAS , Appellee
On Appeal f

rom the 208th District Court Harris County, Texas Tria l Court Cause No. 1660617

M E M O R A N D U M O P I N I O N A jury found Appellant Francisco Bra llan Anavisca guilty of aggr avated sexual assault an d assessed puni shment at 80 years ’ confinement. See Tex. Penal Cod e Ann. § 22.021. Appellant appeal ed an d, in three iss ues, asserts the trial court erred by (1) denying his request for a jury instruction o n a lesser

- included offense, (2) overruling his Confrontation Cl ause objections, and (3) denying his motion fo r mist rial. For the reasons below, we affirm

.2 B ACKGROUND Ap pellant a nd Complainant met on MeetMe, a n o nline social networking application. Complain ant told Appellant she liked rap music and, after talking for

a couple of weeks, Appellant and C o mpla inant “ m ade p lans to meet up so [Complainant] could go t o the [rec ording] stu dio. ” On October 15, 2016, Appellant and a friend drove to Henderson, Texas to pick up Complainant from her mother ’ s house

. After pi cking Complainant up at approximately 1:00 a. m., A ppellan t drove Comp la inant b ack to his home in Houston. Appe llant was 25
ye ars old at the time and Complainant was fifteen. Complainant remained at Appellant ’ s home for two days. On the second day, Appellant te xted one of Complainant ’ s friends to meet them at a nearby Pizza H ut to pick up Complainant

. Appellant drove Complainant to the Pizza Hut ; a police officer who had been tipped off by Complainant ’ s friend also was waiting at the location . When Appella nt a nd C omplainant arrived, Appellant no tice d t he pol ice officer ’ s car an d drove away. The officer initiat ed a traff ic stop on Appellant ’ s vehi cle; Appellant pulled into a driveway, ex ited his vehicle, and ran
away.
The police officer proceeded to drive Complainant to the police station. On the way, Comp lainant to ld the of ficer that Appellant made her h ave sex with him while she was at his house. Appellant was arrested shortly thereafter and charged with aggravate d s exual assault of a child 14 to 17 years old

. Appellant proceeded to a jury trial in Jan uary 2020. Th e State presented testimony from seven w itnesses regarding the incident involving Appellant and Complainant. The State also presented testimony from f our other witnesses3

regarding a separate extraneous offense involving Appellant and Beth. 1 After three d ay s of testimony and evidence, th e j ury returned a verdict findin g Appellant guilty of aggravated sexual assault of a child. Appellant elected to have the jury assess punishment. After hearing testimony and evidence , the jury assessed punish ment at 80 yea rs ’ confi nement. Appella nt appe aled.
A NALYSIS Raising three issues on appeal, Appella nt asserts the trial court erred by:
1. denying his request for a jury instruction on the lesser

- included offense of sexual assault ; 2. overruling his Confronta tion Clause ob jection s to t wo witnesses ’ testimony reg arding statements made by Beth, a non
- testifying witness ; and 3. denying his motion for mistrial after the testimony of a witness at the p unishment phase addressing th e meaning of Appellant ’ s tattoos.
We address the se issues ind ividually below.
I. Less er - I nclu ded O ffense of Sexual Assault In his first issue, Appellant asserts he was entitled to a jury in struction on th e lesser

- included offense of sexual assault because “ more than a scintilla of evidence

was adduced ” tha t would have permit ted the jury to fin d Ap pellant was guilty only of sexual assault.
A. Standard of Review and Governing Law

In a prosecution for an offense with lesser

- included offens e s , the jury may find the defendant not guilty of the greater o ffense but g uilty of any lesser

- included

1 Because Beth was a minor whe n the extraneous offense occurred, we refer to her using a ps eudo nym. See Tex. R. App. P. 9.10(a ).4

offense

. See Tex. Code Crim

. Proc. Ann. art. 37.08. A charge on a lesser

- included offense should be given when (1) the lesser

- included offense is included withi n the proof necessary to establish the offense cha rge d, and (2) t here is some ev idence in the record that w o uld permit a jury to r ationally find that , if the defendant is guilty, the defendant is guilty only of the lesser offense. Sweed v. State , 351 S.W.3d 63, 68 (Tex. Crim. App

. 201 1); Tutson v. State , 53 0 S.W.3d 322 , 329

- 30 (Tex . App.

— Houston [14th Dist.] 2 0 17, no pet.).
To determine whether the les ser
- included offense is included within the proof necessary to establish the charged offense, we compare the stat utory elements and any descriptive averments in the indi ctment for th e greater offense with the st a tutory elements of the lesser offense. Sweed , 351 S.W.3d at 68; Tutson , 530 S.W.3d at 329. This determination presents a question of law that does n ot depend on a ny evidence produced during trial. R ice v. State , 333 S.W.3d 140, 144 (Tex. Crim. App

. 201 1 ). For the second part of the analysis, we ev aluate whether some evidence

ex ists from which a ra tional jury could acquit the defendant of the greater offense while convi cting the defendant of the les ser
- included offense

. Sw eed , 351 S.W.3d at 68; Tutson , 530 S.W.3d at 329

- 30

. The evidence must establish the lesser

included offense as a “ valid, rational alternative to the charged offense. ” Sweed , 351 S.W.3d at 68. To make this determination, we rev iew all the evid ence intr oduced during trial; anyth ing more tha n a sc intilla of evidence entitles the defendant to a lesser

included offense charge. Tutson , 530 S.W.3d at 330. But although a “ sc intilla of evidence ” presents a low threshold, it is no t eno ugh that t he jury may d isbelieve

cruc ial evidence per t aining to the greater offense. Sweed , 351 S.W.3d at 68. Rather, “ ‘ there must be some evidence directly germane to the lesser

- included5

offense for the finder of fact to consider before an in struction o n a les ser
- included off ense is warranted. ’ ” Id . (quo t ing Skinner v. State , 956 S.W.2d 532, 543 (Tex. Crim. App

. 1997)). If some evidence refutes or negates other evidence establishing the greater offense, o r if the evi dence presented is subject to differ ent int erp retations, th en the standard is met and the instruction is warranted. Id

. ; Tutson , 530 S.W.3d at 330.
B. Releva nt Evid e nce
As n ecessary to this analysis, we summarize the evidence presented at trial regarding the events that took place between A ppellan t a nd C o mplaina n t. Testifying at trial, Compl ainant said Appellant and one of his fr iends picked her up at her mother ’ s house in Hen derson . Complainant said she “ b rought a couple of ba gs ” with her because she “ didn ’ t know how long [she] was going to be there. ” According to Complainan t, they drove for “ a long time ” before arriving at

“ a white trailer house. ” Complainant said she put her stuff in Appellant ’ s bedroom after arriving at the house

. Describing Appellant ’ s bedroom, Complainant said Ap p ellant had “ two
gun s in t he closet and then .

. . a gun by the bed. ” Complainant also said Appellant had a “ long ” knife in the living room that was “ kind o f like a machete. ” At one point while she was at Appellant ’ s house, C o mplainant recalled that Appe llant grabbed the knife and told her “ it would be easy for him to be able to cu t [her] arm off with it

. ” Complain ant testified that, shortly after arriving at Appellant ’ s house, Appellant “ ended u p telling [her] to take [her] clothes of f and he made [her] do oral and anal and regula r sex. ” Comp lainant testified that she “ di dn ’ t want to ” have sex with Appellant and was “ nervous ” and “ [s]cared. ”6

Aft erwards, Complainant s aid she and App ellant went back to the living room where Appellant started playing vide o games with his friend. A ccordin g to C ompl ainant, Appell a nt “ played video gam es for a little bit ” before he made her return to the bedroom with him and have anal sex. Complain ant said Appellant

“ made [her] take a shower ” afterwards

. Complainant recalle d that she was feeling

“ [r] eally upset a n d wanting to leav e ” but “ was scared to try. ” Complainant said sh e and Appellant had “ or al an d vaginal ” sex in the shower. Complainant testi fied that she and Appellant lay down on Appellant ’ s bed afterwards and “ it ended going to vaginal sex

. ”
On her sec ond day at Appella nt ’ s house , Complaina nt said she “ wanted to go home ” and “ gave [Appell ant] an offer that [she] would te x t one of [her] friends and

. . . they could meet [Complainant] to pick he r up. ” Complainant t esti fied that Appellant mes saged her fri end to pick Com pla inant up at a nearby Pizza Hut

. According to Complainant, she , Appellant , and Appellant ’ s friend drove to the Pizza Hut , saw a police officer in the parkin g lot , and returned to Appellant ’ s house. Back at Appellant ’ s house, Complainant s aid Appellan t ’ s fr ien d “ pulled [her] into hi s room ” and “ made [her ] do va ginal [and] oral ” sex. Complain ant recalled that she felt “ [r]eally upset ” and “ just wanted to not have to be there
anymore. ” Afterwards, Co mplainant said Appellant again drove he r to the Pizz a Hut and saw a police officer waiting for t hem. C omplainant said the police offi cer started fol lowing Appella n t ’ s vehic le and Appellant “ freaked out, pulled into a driveway and jumped out and ran. ” Com plainant waited for the police officer and rode with him t o the police station , where she was met by her a unt. Complain ant

s aid her aunt took her “ to the hospital to get the rape kit done. ” Complain ant said7

she was “ not really in [her] right mind at that point ” and “ was really upset and [] couldn ’ t believe tha t [she] actually was away from there. ” At the hospital, Complainant testified that the nurses “ measure d all the bruises and things that [were] on [her] body. ” Admitted during Complainant ’ s testimon y were pictures taken by her mother showing bru ises an d hi c k eys on Complainant ’ s body. Complaina nt said the bruises were from Appellant and his friend, who were “ rough ” with her “ [d]uring the sexual acts. ” F urther d esc ribing Appel lant ’ s actions , Complain ant said “ he would hold [her] down and force [h er] to do w h a tever he wanted [her ] to do. ” Complainant also recalled that Appe llant would “ hold[] [her] thro at down ” with his hand during sex

. Complainant said she asked Appellant “ to s t op ” “ [e]very time bef ore he would start ” having sex with her

. Compl ainant said s he was “ afraid ” because of “ all the weapons and how forceful [Appe llant ] was. ” Testifying at trial, Deputy Sampson said he initiated the traffic stop on Appellant ’ s vehicle before Appellant ran aw ay from the scene. Deputy S ampson testified th at he drove C omplainant to the police station in his car and recall ed that Complainant was “ nervous ” , “ appeared upset ” , and “ was scared. ” On the way to the police stati on, Deputy Sampson said Complainant “ bec ame very upset, started crying, and stated she n eeded to t e ll me something. ” Complainant told Deputy Sampson she had sex with Appellant. When Deputy Sampson asked Complainant if it “ was willing ly ” , Complainant “ stated no. ” Emergency room nurse Rachel F ischer performed a sexu al assault e xam on Compla inant afte r Complainant arrived at the hospital. Reading from the sexual assault examination form s he filled out during the exam , Fischer provided Complainant ’ s account of what occurred while she was at Appe llant ’ s house. Acc o rding to F i sc her, Complai nant told he r Appellant had or al, vaginal, and anal8

se x with her and choked her during intercourse “ many different ti mes ” . Fischer also said Complainant told her she “ was scared because [Appellant and his frien d] had so many guns and stuff. ”

D escribing Complainant ’ s a p pearance during the e xam, Fischer testif ied that Comp lainant “ leaned forward hugging her arms around her waist and she looke d down while giving her history. Her voice was shaking. She sq ueezed he r legs together duri ng the exam. ” Fischer al so said Compl a inant “ didn ’ t want to look at me as she was telling me what happened. ” Fischer testified that there were

“ various b ruises [and] abrasions on [Complainant ’ s] thighs, the k nees, the bre a sts , [and] t he abdomen. ” Fischer said these injuries were consis tent w ith the biting and cho king Comp lainant report ed. Fi scher also testified that Complainant had pain in

a nd abrasions to her g e nitals. Fischer said the exte nt of C o mplainan t ’ s genital i njuries “ is v ery rare to see. ” Finally, forens ic DNA analys t Zury P h ill ips testified with respect to the testing and analysis done on DNA samples recov ered from Complainant and her clothing. Phillips testified that, based on her analyses of several it ems of eviden ce, there was “ very strong support ” fo r the proposition th a t A ppellant was a contributor to the DNA mixture on swabs taken from Complainant ’ s genitals, neck, brea sts, and clothing

. C. Application Turning to the first step in our ana lysis , the pa rties correct ly agree that , as charged, sexual assault is a lesser

- incl u ded offense of aggravated sexual as sault. A s relevant here, a person commits sexual assault if, “ regardless of whether the person knows the age of the child at the time o f the offense , the person intentionally or knowingly: .

. . causes the sexu al or gan o f a child to contact .

. . [the] sexual organ of another person, including the actor ” . Tex. Penal Cod e Ann.9

§ 22.011(a)(2)(C). Aggravated sexual assault requires pro of of the s am e e lement s except that , as charged, the aggravating factor required pro of th at Appellant by acts or words placed Complainant in fear of serious bodily injury. See id

. § 22.021(a)(1)( B) , (a)(2)(A) (i i ) ; see also Junious v. State , No. 14

- 09

- 0040 0

- CR , 2010 WL 3946057 , at *3 ( Tex. App.

— Houston [ 14th Dist.] Sept. 28, 2010, pet.

re f ’ d) (mem. op., not designated for publication). For the second step, we examine whe ther the record contains any evidence directly germane to the lesser

- included offense, s uch that th e lesser

- included

o ffense was a valid, ration al alternative to the charge d off ense

. See Sweed , 351 S.W.3d at 68. W e conclude that showing is not made here. Spe cifically, the record does not contain any evidence showing Complainant was not in fear of seri ous bodil y injury during the sexual assaults. Complainant testified th at Ap pellant made her have sex with him nu merous times, including oral, vaginal, and anal sex. Complainant said Appellant was “ rough ” d uring the

sexu al acts and would “ hol d[] [her] thr oat down ” wit h hi s hand

. Complainan t said she asked Appellant “ to s t op ” “ [e ]very time before he would start ” having sex with her

. According to Complainant, at various times she felt “ nervous ” , “ [s]cared ” , and was “ [r]eally upset and wa nting to leave ” but “ was scared to t ry. ” Complainant a lso recalled that Appellant ’ s house had numerous guns and a long,

m achete

- li k e knife. Complainant said she was “ afraid ” because of “ all the
weapons and how forceful [Appellant ] was. ”
The fear Complainant de scribed is co rroborated by oth er evidence. Accor d ing to Deputy Sampson, during the drive to the police station Complainant

was “ nervous ” , “ appeared upset ” , and “ was scared. ” Deputy Sampson said Complainant “ became very upset, started crying, and stated s he needed to tell me something

. ” Deput y Sa mpson testified that Complainant told him s he had sex with10

Appellant against h er will. Likewise, F i scher recalled that , while Complainant was describing the sexual assault, Complainant said s he “ was scared becau se [Appellant and his friend] had so many guns an d stuff. ” Fischer also testified t hat C omplainant

“ leaned forward hugging her arms around her waist and she looke d down while giving her history. Her voice was shaking. She sq ueezed her legs together duri ng the exam. ” Fischer testifi ed that there were bruises and abrasion s on Complainan t ’ s b ody consistent w ith the biti ng, grabbing, and cho king she reported experiencing. Fi scher also testified that Complainant had pain in a nd abrasions to her g e nitals and that th e exte nt of C o mplainan t ’ s genital in juries “ is very rare to

se e. ”
N o evidence was introduced at trial to refute or negat e th is evidence establishing C o mpl ainant ’ s level of fear during her encounter s with Appellant. Similarly, this evidence does not sup port any alterna tive conclusions r eg arding whether Complainan t was in fear o f se rious bodily injury. Complainant described several sexual assaults that took p lace over two days that left her bruised and in pai n ; these assaults occurred in an unfamiliar ho use that contain ed gu ns and a knif e. Complainant ’ s fragile e motional stat e af te r the assaults was testified to by Deputy Sampson and Fischer. Fischer also testified regarding the types of injuries Complainant sustaine d a nd their extent . Thi s evidence wo uld not permit a rati onal jury to acquit Appellant o f aggrava t ed sexua l assault while con vic ting him o nly of the lesser

- included offense of sexual assault

. See id .; Tutson , 530 S.W.3d at 329

- 30 . Accordingly, the trial court did not err by de nying Appel la nt ’ s request for a ju ry instructio n on the lesser

- included of fense of sexual ass ault

. We overrule Appellant ’ s first issue.11

II. Confr ontation Clause In his second issue, Appella nt asserts the trial court erred by overruling his Confrontation Clause objection s t o t wo witnesses ’ test imony regarding statements made by Beth, a non
- te stifying w itness

. Specifically, the witnesse s testified regarding B eth ’ s statements that Appellant sexually assaulted her in a n incident that occurred in August 2016

. 2
A. Stan d ard of Revie w and Governing Law

T he Sixth Amendme nt provides that, in all criminal prosecuti ons, the accused shall have the right to be confronted by the witnesses a gainst him. See U.S. Const. amend. VI; Crawford v. Washing ton , 541 U.S. 36, 5 1 (2004)

. T he Sixth Ame ndment right of co nfro ntation app lies not onl y to in

- court tes timony bu t also to out

- of

- court statements that are testimonial in nature. Crawford , 541 U.S. at 51 ; Langha m v. State , 305 S.W.3d 568, 575 (Tex. Crim. App

. 2010). The Con f rontation Clause “ pro vides a simpl e yet unf orgiving rule: the State may not introd uce a tes timonial h earsay sta tement unless (1) the declarant is unavailable to testify and (2) the defendant had a prior opportunity to cross

- examine the declara nt. ” Le e v. State , 4 18 S.W.3d 89 2, 895 (Tex. App

. — Hous ton [14th Dist.] 2013, pet. ref ’ d). Whe ther a pa rticular s tatement is testimonial is a question of law we review de novo

. Wall v. State , 184 S.W.3d 730, 742 (Tex. Crim. App

. 2006). The Court of Criminal Appea ls has delineated t hree types of testimonial

s tatements: (1) “ ex parte in

- court testi mony or i ts functi o nal equiv alent ” , i. e. ,

“ pretrial statements that declarants would reasonably expect to be used

2 Evidence regarding this extraneou s o ffense was admitted pursuant to Te xas C o de of Cr iminal Procedure a rt icle 38.37. See Tex. Code Crim

. Proc. Ann. art. 38.37 § 1 ( b )

. Prior to admitting this e vidence, the tri al court held a hearing outside o f the jury ’ s presence and concluded the evidence w ould be ade quate to support a find ing that Appel lant committed th i s sepa rate offense beyond a reasonable doubt. See id . art. 38 .37 § 2 (a).12

pr osecutorially ; ” (2) “ extraj udicial statements contained in fo rmalized tes timonial materials, such as affidavits, depositions, or prior testi mony; ” an d (3) “ st a tements that were made under circumstances which woul d lead an objective witness

re asonably to believe that the statement would be available for us e at a late r trial. ” L ang ham , 305 S.W.3d at 576. The following principles are helpful in determini ng whethe r particular statements are testimonial: (1) testimo nial statements are official and formal in nature, (2) interaction with the police initiated by a witness or the victi m i s less likely to result in testimonial statements than if initia ted by th e police, (3) spontaneous statements to the police are not testimonial, and (4) responses to preliminary questions by police at the scene of the crime while police are assessing

an d se curing the scene are no t testimonial. Amador v. State , 376 S.W .3d 339, 342

- 43 (T e x. App.

— Houston [14th Dist.] 2012, pet. ref ’ d); Dixon v. State , 244 S.W.3d 472, 48 2 (Tex. App.

— Houston [14th Dist.] 2007, pet. ref ’ d).
A Conf rontation Claus e violation is a constitutional error t hat requires reversal unless we conclude beyond a reasonab l e doubt that the error was harmless. See Davis v. State , 203 S.W.3d 845, 849 (Tex. Crim. App

. 2006); Smith v. Stat e , 436 S.W.3d 353, 372 (Tex. App.

— Houston [14th Dist. ] 2014, pet. ref ’ d) ; see also Tex. R. App. P. 44.2(a). The critical inquiry i s not whe t her the evidence supported the verdict absent the erroneously

- admitted evidence, but rather “ the likelihood that the constitutional error was actually a con tributing fa ctor in the jury ’ s deli berati ons. ” Scott v. State , 227 S.W.3d 670, 6 90 (Tex. Crim. App

. 2007).
To determine whether the admission of the statement was harmless beyond a reasonable doubt, we consider (1) the importance of the statement to the S tate ’ s
case; (2) whether the statement wa s cumulative of other evidence; (3) the presence

o r absenc e of evidence corrob orating or contradicting the statement on material13

points; and (4) the overall strength of the State ’ s case. Davis , 203 S.W.3d at 852; S m ith , 436 S. W.3d at 372. We also may con sider the source and nature of the

error , the ext ent of th e State ’ s emphasis on the evidence, the relative weight the jury may have assigned to the evidence as compared with the balance o f remaining evidence r elevan t to the iss ue, and any other factor cont ained in the record that may shed light on the pr obable im p act of the evidence on the minds of average jurors. Cone v. State , 383 S.W.3d 627, 637 (Tex. App.

— Houston [14th Dist.] 2012, pet. ref ’ d).
B. R elevant Evidence
For our ana lysis of this issue, we focus on evidence pertaining to the
extraneou s offense involvin g Appellant a nd Beth.
Nurse Fischer testified regarding the sexual assault examination she performed on Beth on August 8 , 201 6 , and the forensic examination report she

c omplet ed during the exa m inati on . According to Fischer, Beth was 15 years old whe n she cam e in for the examination

. Discussing Beth ’ s medical history , Fischer

re ad her record of Beth ’ s statements regarding the assault

. According to F is cher, Beth said she met Appellant on an online d ating application , met up with him once , and ha d con s ensual sex with him in his car. Fischer said Beth discussed that she met Appellant for a second time a few days later a nd told him she did not want to have sex . Beth stated that Appellant pointed a gun at her and said “ he was gonna get what he wants

. ” B eth told Fischer that Appellant forced her to have oral sex with him in the car before driving her to an abandoned house. Once in the house, Beth r ecalled that Appellant forced her to have oral, vaginal , and a nal s ex with him; Beth said she tried to scre a m but Appellant told her to “ [s]hut up or he will kill ” her and repeatedly “ [c]hok[ ed] [her] ever y time [she] made a noise. ”
Fischer also testified regarding th e injuries on Beth ’ s body, including bruise s14

on her neck, ches t , and arms . F ischer said th e br u ises were consistent with Beth ’ s statements regarding what occurred between her and Appellant. Fisc her also note d that Beth had “ a ho arse and raspy voice ” as s he was talking along with neck pain and pai n while s wallo wing, which were con sistent with h er r e ports that she was choked. In addition, Fischer testified regarding the injuries t o Beth ’ s genitals

. Next, forensic DNA analys t Jessica Powers test ified with r espect to the testing and analysis done on DNA samples recov ered from Bet h an d her clothing

. P h illips testified that, based on her analys es of th e genetic material recovered from Beth ’ s genitals, the probability that Appellant was a contributor to that geneti c material was significantly higher tha n if th e material had come from an other individu al. 3 Finally , Officer Eason testified about his interactions with Beth the day of the assault . According to Officer Eason, he received a call in the early

- mo rning hours of August 8, 2016 , re garding a n assa ult and proceeded to the reported location. O f

fice r Eason testified that he found Beth sitting out side on the curb ; O fficer Ea son recalled that Beth was “ visibl y upset ” and “ crying, shaking. ” Officer Eason also stated that Beth had “ bruising around her n eck. ”
Accordin g to Officer Eason, Beth t old him “ th a t she was raped ” and that

“ the suspect penetra t ed both her anus and va gina. ” Officer Eason said B eth reported that she was raped at two different locations : first “ do wn the street from where she was pic ked up from ” and later at t he loca tion to which O ff i c er Eason

3 S pecifically, for the first tested vaginal swab , Phillips said Appellant could not “ be excluded as a possible con t ributor to th e foreign male DNA pr o file deduced from this mixture. The probability tha t a random ly chosen, unrelate d individual would be inclu ded as a possible contribut or to the foreign male DNA profile deduced from this mixture is approximately one in 5 5 quinti llion individuals. ” For t he second test ed vaginal swab, P hillips testified that Appellant also could n o t “ be e x cluded as a possible co ntributor to the major component

. The probability that a random ly chosen unrelated indi vidual would be included as a possible contribut o r to the
m ajo r component is approximately one in 26 octillio n individuals ”

.15

respon ded

. Officer Eason testified that Beth informed him the suspect had a gun that he threa tened her with during the assault. According to Officer E ason, Beth

a lso t old him the suspect had c hoked her. After gathering this i nformation, Offic e r Eason said he dro ve Beth to the hospital.
C. Application Appellant ’ s Confrontation Clause issue challenges the testimony from Fischer and Officer Eason regardin g what Beth told them about the assault . W e consider t hese in dividuals ’ testi mony separately.

1. F ischer
As discussed above , nu rse Fisc her testified regarding the sexual assault examination she performed on Beth and read Beth ’ s account of the sexual assault directly from her for ensic examination form

. 4 Appe llant assert s that these constitute testimon i al stat ements and, because Beth did not testify at trial, the statements should have been e xcluded under the Confrontation Clause.

In Melendez

- Diaz v. Massachu set ts , the United States Supre me Court he ld that med ical records , created for treatment purposes , are no t “ testimonial ” in natur e within the meaning of C rawfo r d . 557 U.S. 305, 312 (20 0 9). Foll owing this line of reasoning, “ [v] irtually all Texas courts that have considered the issue have conclud ed that whe n a patient gives a verbal history to a sexu a l assau lt nurse examiner or other medical professional during a sexual assault exam for the
purpose of receiving me dical treatment, the history is not considered testimonial within the context of Craw for d

. ” Erv in v. S t

ate , No. 08

- 15

- 00025

- CR, 2017 WL

4 Before F ischer began this lin e of testim ony, defense counse l obj ected and raised several gr ounds for the testi mony ’ s exclusion , including the Con frontati on Clause. The trial court
overru led defense co unsel ’ s objection, thereby preserving Appellant ’ s C onfrontation Clause challenge for appell ate review. See Tex. R. App. P. 33.1(a)(1).16

3 61 4 237, at * 11 (Tex. App.

— El Paso Aug. 23, 2017, pet. ref ’ d) ( n ot designated for publication) ; see id . (c ollecting cases) ; see also Dobbs v. State , N o. 02

- 17

- 00246

- C R , 2018 WL 3060093, at * 3 (Tex. App.

— F ort Worth Ju ne 21, 2018, pet. ref ’ d) (mem. op., not des i gnated f or publication) ( not ing that “ [v]irtu ally all ” Texas Courts have conc luded that, when a patient gives a verbal history during a sexual assault exam, the history is not considered testimonial with in the context of Crawford ).
The Austin C ourt of Ap p eals recently addressed a similar issue in a sexual assault case, in which a sexual assault n urse examiner testified regarding
state ments made by the complai nant regarding the assault. See Murray v. Sta te , 597 S.W.3d 964, 973

- 74 ( Tex. App.

— Austin 2020, p e t. ref ’ d ). There, the complainant was admitted t o the hospital for a suspected drug overdose and, two days after she was admitted, underwent a s e xual assaul t exam. Id . at 968

- 69. During the exam , the compl ainant told the nurse she had been sexually ass a ulted by the defenda nt. Id . at 969. On appeal, the defendant argued that the nurse ’ s testimony regarding the complainant ’ s s tatements viol ated h is C o nfrontation Clause rights

. See id . at 973. Ci ting M elendez

- Dia z , the court of appeals r ejected this arg u ment and noted that, because the nurse ’ s testimony “ establishe[d] that the primary purpose of [the complainant ’ s] s tatements during the patient his tory was for medical treatment, making the stateme nts wa s non
- testimonial. ” Id . at 974; see also Bohanna v. State , No. 14

- 19

- 00936

- CR , 2021 WL 1917663, at * 6 (Tex. App.

— Houston [14th Dist.] May 13, 2021, no pet. h.) (mem . op., no t d e signate d f or publicati on) (adopting Murray ’ s reasoning in a similar case ). Guided by these au thori ties, we conclude that Beth ’ s statements to F is cher during the sexual assault examination were non
- testimonial. Beth arrived at the17

hospital shortly after the assau lt occurred a nd underwent a sexual assault exam adminis tered b y Fisc her. Testif ying at trial, F ischer stated that she c o llected from Beth information abo ut the ass ault “ for medical purposes ” and “ [t]o properly diagnos e a nd treat ” Beth . Broadly des cr ibi ng her role in this process , Fischer testified that “ a s ex ual as sault nurse e xaminer is a registere d n urse that has been
t r ained to provide comprehensive care to sexu al assault patients, trauma informed, able to do the health and welfare needs of t he patient while taking a traum a
informed approach for someone who has g one th rough a trau ma such as sexual assault. ” Similar to M urray , this evidence shows tha t the prima ry purpose of Beth ’ s statements to Fischer was for med ical treatment; therefore, th e statements

are non
- testim on ial. See Mur ray , 597 S.W.3d at 973

- 74 ; s ee also B ohanna , 2021 WL 1917663, at *5

- 6 ( evidence of two extraneous sexual assaults was admitt ed during the punish ment phase of the appellant ’ s trial; concluding the nurse s ’ testimony regarding the e xtraneous

- offense complainant s ’ statements about the assault s wa s non
- testimonial, this court noted that “ the e xa minations and obtain ment of a verb atim history from each complainant w as for the purpose of diagnosis and treatment ” ). We overrule Appellant ’ s Confrontation Clause issue with respect to Fischer ’ s testimony.

2. Officer Eason
A s discussed above, Officer Eas on tes tified abo ut Beth ’ s st atements to him whe n he responded to the call reporting the assault. Specifically, Officer Eason testified that Beth told him she was raped , that the suspect choked her during the

a ssault, and that the suspect threatened he r wi th a gun. Appel lant asserts that these

were testimon ial statements and, because Beth did not testify at trial, the trial court18

erred by not s ustaining his Confrontation Clause objection

. 5 We presume without de ciding that the trial court erred by overr ulin g A ppellant ’ s Co nfrontation Clause objection to Officer Eason ’ s testimony regarding Beth ’ s statements to him . We nonetheless conclude be yond a reasonable doub t that the error was harm less. See Tex. R. App. P. 44.2(a). First, this testimony addressed an e x tr aneous offense rather than the
aggrava ted sexual assault for which Appellant was o n trial. The jury was instructed as follows with respect to th e extraneous offense :
You are further instructed that if there is any evidence befor e you in this case r egar din g the def endant ’s [sic] committi ng an allege d offense or offenses other than the o ffense alleged against him in the indictment in this case, you can not consider such evidence for any purpose unless you find and believe beyo nd a re asonable doubt that the de fendant committed such other off ense or offe nses, if any, an d even then you may on ly consider the same in determi ning intent, preparation or plan, if any, in connection with the offense , if any, alleged agai nst him in the indictment and for no other pur pos e. See also Tex. Code Crim

. Proc . Ann. art. 38.3 7 § 2(a)(1).
Officer Ea son ’ s sta tements regarding what Beth told him were cumulative of

o ther evidence pertaining to the e xtraneous offense. Specifically, F ischer testified to the same regarding Bet h ’ s acc ount of what transpired between her a nd Appellant

. Both Fischer and O f ficer Eason t estified about Beth ’ s injuries and O f ficer Eason noted that, whe n he first arrived on the scene, Beth was “visibl y upset ” a nd “crying, shaking. ” Numerous photograph s of Be th ’ s injuries also were admitted into evidence. DNA analys t Powers testified that , based on her analys es

5 Before Officer Eason began this lin e of testimony, defense counse l o bj ected and raised several grounds fo r the testi mony ’s exclusion , including the Con frontation Clause. The tria l court overruled defense counse l ’s objection, thereby preserving Appellant ’s C onfr ontation Clause challenge for appell ate review. See Tex. R. A pp. P. 33.1(a)(1).19

of the geneti c material recovered from Beth , the probability that Appellant was a contributor to that genetic material was significantly higher tha n i f th e material had come from an o ther random individual . This evidence, considered in conjunction with the challenged stat ements, supp orts the conclusion that the challenged
statements were not a contributin g factor in the jury ’ s deliberations.

M oreo ver , the overall strength of the State ’ s c ase with respect to the charged offense was strong. Complainant testified about her interactio ns with Appella nt and said he rep eatedly sexually assaulted her over a tw o
- day period ; Complainant identified Appel lant in court as the person who assaulted her

. C o mplainant a lso said Appellant choked h er during the assaults and left bruises and abrasio ns on he r body. Numerous photographs were admitted into evidence showing b ruises on Complainant ’ s body. Compla i nant ’ s t est imony was corroborated by testimony fro m other witnesses. First, Dep uty Sampson t estified regarding his interactions with Complainant after he found her in Appellant ’ s vehicle. Deputy Sampson recall ed that Complainant was “ nervous ” , “ appeared upset ” , and “ was scared. ” According to Deputy Sampson, Complainant told him she had sex with App ellant against her will. Second, nurse F i scher testified regarding the sexual assault exam she performed on Complainan t. Fischer sa id Complainant provide d the sam e a c count regarding what occurred between her and Appellant. Fischer also testified Complainant to ld her she “ was scared because [Appellant and his friend] had so many guns and stuff. ” According to Fischer, Co mplainant had bru ises , abrasions ,
an d pain on he r body consis tent with t he injuries she had reported. Finally, DNA a nalys t Phil lips testified regard ing her analyses of sever al items of evidence and concluded there was “ very strong support ” fo r the20

propo sition that A ppellant was a contribu tor to th e D NA mixture on swabs taken from Complainant ’ s genitals, neck, brea sts, and clothing

. The strengt h of th is evidence pertaining to the charged offense reinfo rces our conclusion that O f ficer Eason ’ s testimony re garding Beth ’ s statements to him was likely n ot a contributing factor in the jury ’ s deliberations.
We ov errule Appellant ’ s Confrontatio n Clause issue with respect to Officer Eason ’ s testimony.
III. Motion for Mistrial In his final issue, Appellant asserts the trial court erred by den ying his

mo tion for mis trial during the punishment phase. Appellant moved for a mistrial after one of the State ’ s ex perts tes tified regarding the sig nificance of Appellant ’ s
tattoos.
A. Standard of Review and Gover ning Law
We review the denial of a motion for mistrial for an ab use of discretion. Ocon v . State , 284 S.W.3d 880, 884 (Tex. Crim. App

. 2009). When decidin g whether the trial court abused its discretion, we exami ne the particular facts of the

case. Green v. State , 554 S.W. 3d 785, 790 (Tex. App.

— Houston [14th Dist.] 2 018 , n o pet.) ( citing Ladd v. State , 3 S.W.3d 547, 567 (Tex. Crim. App

. 1999)).

“ A mistrial is an appropr iate remedy in ‘ extreme c ircumstances ’ for a narrow class of highly prejudicial and incurable errors. ” O con , 284 S.W.3d at 884 (quoting Ha wk ins v. St ate , 135 S.W.3d 72, 77 (Tex. Crim. App

. 2004) (en banc) ). In deciding whether to grant a mistrial, t he trial cour t undertakes an appellate function and “ determin [es] whether improper conduct is so harmful that the case must be redone. ” Hawkins , 135 S.W.3d at 77. Ou r revie w of the trial court ’ s ruling on a motion for mistrial balances three factors: “ ( 1) the severi ty of the21

miscon duct (preju dicial effect), (2) curative measures, and (3) the certainty of the
p uni shment assessed absent the miscon duct (likelihood of th e same punishme nt being asses sed ). ” Id

. With respect to witness testimony, ordinarily a prompt inst ruction to disregard will cure any error associated with an improper question and answer. Green , 554 S .W.3d at 790 (citing Ovalle v . State , 13 S.W.3d 774 , 78 3 (Tex. Crim. App

. 2000) (en banc) ). S i milarly, “ ina dmissible evidence can be rendered harmles s if other ev idence is admitted at trial without objection and it proves the same fact that the ina dmissible evidence sought to prove. ” Harris v. State , 164 S.W.3d 77 5, 783 (Tex. App.

— Houston [14th Dist.] 2005, pet. ref ’ d ) (internal quotation omitted )

. B. Relevant Evid ence Seven witnesses testified at Appellant ’ s punishment hearing. The first witness, Anne, testified regarding an inciden t in which Appellant sexually

as sa ulted her. Four other witnesses test ified with respect to this incident, including Ann e ’ s father, A nne ’ s sexual assault nurse examiner , the forensic DNA analyst who analyzed the evidenc e in the case, and the investigating detective. Officer Moore, a c an ine supervisor with the Harr i s County Sheriff ’ s Office, was the sixth witness to testif y. According to Officer Moore, he and his dog helped apprehend Appellant after Appellant ran from his vehicle the day he was attemptin g to drop Complainant off at Piz z a Hut. Officer Moore testified that Appellant was found hiding under a trailer home and arrested at t he scene. During Officer Moor e ’ s testimony , n umerous photographs of Appellant taken shortly after his arrest were admitt ed int o evidence. The photog rap hs show several tattoos on Appellant ’ s body including : (1) “ M S X3 ” on his lower back; (2 ) “ Thug ” o n his

u pper left arm; (3) “ No Bitch Feel My Pain ” on his lower right arm; (4) “ M S ” on22

hi s chest; (5) a hand folded into a si gn res embling hor ns with “ 13 ” on the middle knuck l es on the left side of his chest ; and (6) “ Original Killa From Honduras ” on his lower ab domen.
Detective Rivas was the last witness to testify. Detective Rivas said that he has worked in the Houst on Police De partment ’ s gang division f or ei ght years and

“ specifically investigate[s] MS

- 13 members ” . Detective Riv as said “ MS

- 13 sta nd s for ‘ M ara Salvatrucha trece, ’ which trans lates to the Salvadorian gang. The 13 represents their allegiance to the Mexican Mafi a. ”
Detective Riv as said MS

- 13 “ follow[s] a motto [that] includes kill , rape, and
contro l ”

. Discussing the requirement s for MS

- 1 3 me mbers, Dete cti ve Rivas testified that “ MS

- 13 recognizes mem bers of homeboy, hold a ra nk of homeboy, and above. They don ’ t take into consider ation the gu ys that are trying to a c hieve that rank. And to become a homebo y, you have to have many m urders under your belt. ” Detective Rivas testified that MS

- 13 members may be identified by “ tatto os, their sla ng, [and] certain words that they use within the mem ber s. ” Discussing the M S

- 13 ’ s “ recruitment process, ” Detective Rivas testified that “ [a] lo t of it i s the y try to see if they are true to their barrio, which refers to their neighborhood and if they are willing to conduct thes e killings as well and identi fyi ng rival gang members. ” When asked what makes MS

- 13 “ so dangerous compared to other
gang s ” , Detective Rivas said it is the gang ’ s “ willingness to conduct these gruesome murders ”

. Ba sed on Appellant ’ s tattoos, Detective Riva s opined that Appellant is a

m em ber of MS

- 13. Viewing specific photographs of Appellant ’ s tat toos, Detective Rivas t esti f

ied that the “ M S ” on Appellant ’ s chest and the hand gesture on the left side of Appellant ’ s chest refer ence MS

- 13. When asked what t h e se tattoos

“ m ean ” , Detectiv e R ivas said: “ For me it means these tattoos that he ha[s] on23

there, he has to hold the ran k o f homeboy a nd above to have them and which, as I stated earlier, requirements are that he has a couple of murders under his be lt .

. . . ” Defense counsel object ed to th is response. Sustaining the objection, the trial court instructed the jury to “ disre g ard the testi mony with regard to murders. ” The trial court denied defense counsel ’ s motion for a mistrial.
On cross

- ex amination, def ense counsel asked Rivas if h e w as “ saying that everybody that is a MS

- 13 member is a killer? ” Rivas rep lied: “ Who has the tat s, ye s; an d they are trying to achieve the rank o f homeboy, yes. ”
C. Application
We concl u de th e trial court ’ s denial of Appellant ’ s motion for mistr ial does

no t c onstitute an abuse of discretion. See Ocon , 284 S.W.3d at 884

. First, after th e trial co urt sus t ained App ella nt ’ s objection to Rivas ’ s testimon y opining that Appellant “ has a couple of mu rders under his belt ” , the trial

cou rt promptly instructed the ju ry to disrega rd the testimony with regard to t he referenced murders. A prompt instructi on t o disregard generally is suffici ent to
cure any error associated with witness testimony. See Green , 554 S .W.3d at 790 ; see also Herrer o v. State , 124 S.W.3d 827, 8 36 (Tex. App.

— Houston [14th Dist.] 2003, no pet.) ( “ A promp t instruction to disregard will o rdinarily cu re error associated with an improper question and answer regarding extraneous offenses. ” ). Second, the substance of the o bjected

- to response was admit ted through other evidence to which Appellant did not object. See Harris , 164 S.W.3d at 783

. Detective Rivas testified t hat MS

- 13 “ follow[s] a moto ” that includes killing and, in contrast t o other gangs, evidences a “ willin gness t o conduct these grueso me murders. ” Ac cording to Detective Rivas, MS

- 13 only recognizes “ a rank of homeboy[] and a bove ” a nd, to become a “ homeboy ” , “ you h ave to have many24

murde rs under your belt. ” Detective Rivas s aid that members of MS

- 13 may be i dentified by their tattoos an d, based on Appellant ’ s tattoos , he o pine d that Appellant is a member of MS

- 13, i.e. , a “ hom eboy ” . This unobjected

- to line of testi mony permits the inference that Appellant, as a m em ber of MS

- 13, has committed murders.
Simil arly, on cros s
- examination, d efe nse counsel asked Rivas if he was

“ saying that everybody that is a MS

- 13 member is a kill er? ” In res ponse, Rivas said “ [w]ho has the tats, yes ”

. Based on this record, we conclude the tria l court ’ s denial of Appellant ’ s

mo tion for mistr ial does not const itute an abuse of discretion.
C ONCLUSION
We affirm the trial court ’ s judg ment.

/s/ Meaga n Hassan Justice

Panel cons ists of C h ief Justice Christo pher and J ust ice s Hassan and Poiss ant. Do Not Publish

— Te x. R. App. P. 47.2(b).