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 from the 208th District Court

Harris County, Texas

Trial 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 Brallan Anavisca guilty of aggravated 

sexual assault and assessed punishment at 80 years’ confinement. See Tex. Penal 

Code Ann. § 22.021. Appellant appealed and, in three issues, asserts the trial court 

erred by (1) denying his request for a jury instruction on a lesser-included offense, 

(2) overruling his Confrontation Clause objections, and (3) denying his motion for 

mistrial. For the reasons below, we affirm.
2

BACKGROUND

Appellant and Complainant met on MeetMe, an online social networking 

application. Complainant told Appellant she liked rap music and, after talking for 

a couple of weeks, Appellant and Complainant “made plans to meet up so 

[Complainant] could go to the [recording] studio.” On October 15, 2016, 

Appellant and a friend drove to Henderson, Texas to pick up Complainant from her 

mother’s house. After picking Complainant up at approximately 1:00 a.m., 

Appellant drove Complainant back to his home in Houston. Appellant was 25

years old at the time and Complainant was fifteen. 

Complainant remained at Appellant’s home for two days. On the second 

day, Appellant texted one of Complainant’s friends to meet them at a nearby Pizza 

Hut 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 Appellant and Complainant arrived, Appellant noticed the 

police officer’s car and drove away. The officer initiated a traffic stop on

Appellant’s vehicle; Appellant pulled into a driveway, exited his vehicle, and ran 

away. 

The police officer proceeded to drive Complainant to the police station. On 

the way, Complainant told the officer that Appellant made her have sex with him 

while she was at his house. Appellant was arrested shortly thereafter and charged 

with aggravated sexual assault of a child 14 to 17 years old. 

Appellant proceeded to a jury trial in January 2020. The State presented 

testimony from seven witnesses regarding the incident involving Appellant and 

Complainant. The State also presented testimony from four other witnesses
3

regarding a separate extraneous offense involving Appellant and Beth.1 After three 

days of testimony and evidence, the jury returned a verdict finding 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 punishment at 80 years’ confinement. 

Appellant appealed. 

ANALYSIS

Raising three issues on appeal, Appellant 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 Confrontation Clause objections to two witnesses’

testimony regarding statements made by Beth, a non-testifying 

witness; and 

3. denying his motion for mistrial after the testimony of a witness at the 

punishment phase addressing the meaning of Appellant’s tattoos.

We address these issues individually below.

I. Lesser-Included Offense of Sexual Assault

In his first issue, Appellant asserts he was entitled to a jury instruction on the 

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

was adduced” that would have permitted the jury to find Appellant was guilty only 

of sexual assault.

A. Standard of Review and Governing Law

In a prosecution for an offense with lesser-included offenses, the jury may 

find the defendant not guilty of the greater offense but guilty of any lesser-included 

1 Because Beth was a minor when the extraneous offense occurred, we refer to her using 

a pseudonym. 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 within the 

proof necessary to establish the offense charged, and (2) there is some evidence in 

the record that would permit a jury to rationally 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. 2011); Tutson v. State, 530 S.W.3d 322, 329-30 (Tex. App.—

Houston [14th Dist.] 2017, no pet.). 

To determine whether the lesser-included offense is included within the 

proof necessary to establish the charged offense, we compare the statutory 

elements and any descriptive averments in the indictment for the greater offense 

with the statutory 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 not 

depend on any evidence produced during trial. Rice v. State, 333 S.W.3d 140, 144 

(Tex. Crim. App. 2011). 

For the second part of the analysis, we evaluate whether some evidence 

exists from which a rational jury could acquit the defendant of the greater offense 

while convicting the defendant of the lesser-included offense. Sweed, 351 S.W.3d 

at 68; Tutson, 530 S.W.3d at 329-30. The evidence must establish the lesserincluded offense as a “valid, rational alternative to the charged offense.” Sweed, 

351 S.W.3d at 68. 

To make this determination, we review all the evidence introduced during 

trial; anything more than a scintilla of evidence entitles the defendant to a lesserincluded offense charge. Tutson, 530 S.W.3d at 330. But although a “scintilla of 

evidence” presents a low threshold, it is not enough that the jury may disbelieve

crucial evidence pertaining to the greater offense. Sweed, 351 S.W.3d at 68. 

Rather, “‘there must be some evidence directly germane to the lesser-included 
5

offense for the finder of fact to consider before an instruction on a lesser-included 

offense is warranted.’” Id. (quoting 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, or if the evidence presented is subject to different 

interpretations, then the standard is met and the instruction is warranted. Id.; 

Tutson, 530 S.W.3d at 330. 

B. Relevant Evidence 

As necessary to this analysis, we summarize the evidence presented at trial 

regarding the events that took place between Appellant and Complainant. 

Testifying at trial, Complainant said Appellant and one of his friends picked 

her up at her mother’s house in Henderson. Complainant said she “brought a 

couple of bags” with her because she “didn’t know how long [she] was going to be 

there.” According to Complainant, 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 Appellant had “two 

guns in the closet and then . . . a gun by the bed.” Complainant also said Appellant 

had a “long” knife in the living room that was “kind of like a machete.” At one 

point while she was at Appellant’s house, Complainant recalled that Appellant

grabbed the knife and told her “it would be easy for him to be able to cut [her] arm 

off with it.”

Complainant testified that, shortly after arriving at Appellant’s house, 

Appellant “ended up telling [her] to take [her] clothes off and he made [her] do 

oral and anal and regular sex.” Complainant testified that she “didn’t want to”

have sex with Appellant and was “nervous” and “[s]cared.” 
6

Afterwards, Complainant said she and Appellant went back to the living

room where Appellant started playing video games with his friend. According to 

Complainant, Appellant “played video games for a little bit” before he made her 

return to the bedroom with him and have anal sex. Complainant said Appellant 

“made [her] take a shower” afterwards. Complainant recalled that she was feeling 

“[r]eally upset and wanting to leave” but “was scared to try.” Complainant said 

she and Appellant had “oral and vaginal” sex in the shower. Complainant testified 

that she and Appellant lay down on Appellant’s bed afterwards and “it ended going 

to vaginal sex.”

On her second day at Appellant’s house, Complainant said she “wanted to 

go home” and “gave [Appellant] an offer that [she] would text one of [her] friends 

and . . . they could meet [Complainant] to pick her up.” Complainant testified that 

Appellant messaged her friend to pick Complainant 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 parking lot, and returned to Appellant’s 

house.

Back at Appellant’s house, Complainant said Appellant’s friend “pulled

[her] into his room” and “made [her] do vaginal [and] oral” sex. Complainant 

recalled that she felt “[r]eally upset” and “just wanted to not have to be there

anymore.” 

Afterwards, Complainant said Appellant again drove her to the Pizza Hut

and saw a police officer waiting for them. Complainant said the police officer 

started following Appellant’s vehicle and Appellant “freaked out, pulled into a 

driveway and jumped out and ran.” Complainant waited for the police officer and 

rode with him to the police station, where she was met by her aunt. Complainant 

said her aunt took her “to the hospital to get the rape kit done.” Complainant said 
7

she was “not really in [her] right mind at that point” and “was really upset and [] 

couldn’t believe that [she] actually was away from there.”

At the hospital, Complainant testified that the nurses “measured all the 

bruises and things that [were] on [her] body.” Admitted during Complainant’s 

testimony were pictures taken by her mother showing bruises and hickeys on 

Complainant’s body. Complainant said the bruises were from Appellant and his 

friend, who were “rough” with her “[d]uring the sexual acts.” Further describing 

Appellant’s actions, Complainant said “he would hold [her] down and force [her] 

to do whatever he wanted [her] to do.” Complainant also recalled that Appellant 

would “hold[] [her] throat down” with his hand during sex. Complainant said she 

asked Appellant “to stop” “[e]very time before he would start” having sex with 

her. Complainant said she was “afraid” because of “all the weapons and how 

forceful [Appellant] was.”

Testifying at trial, Deputy Sampson said he initiated the traffic stop on 

Appellant’s vehicle before Appellant ran away from the scene. Deputy Sampson 

testified that he drove Complainant to the police station in his car and recalled that 

Complainant was “nervous”, “appeared upset”, and “was scared.” On the way to 

the police station, Deputy Sampson said Complainant “became very upset, started 

crying, and stated she needed to tell me something.” Complainant told Deputy 

Sampson she had sex with Appellant. When Deputy Sampson asked Complainant 

if it “was willingly”, Complainant “stated no.” 

Emergency room nurse Rachel Fischer performed a sexual assault exam on 

Complainant after Complainant arrived at the hospital. Reading from the sexual 

assault examination form she filled out during the exam, Fischer provided 

Complainant’s account of what occurred while she was at Appellant’s house. 

According to Fischer, Complainant told her Appellant had oral, vaginal, and anal 
8

sex with her and choked her during intercourse “many different times”. Fischer 

also said Complainant told her she “was scared because [Appellant and his friend] 

had so many guns and stuff.”

Describing Complainant’s appearance during the exam, Fischer testified that 

Complainant “leaned forward hugging her arms around her waist and she looked 

down while giving her history. Her voice was shaking. She squeezed her legs 

together during the exam.” Fischer also said Complainant “didn’t want to look at 

me as she was telling me what happened.” Fischer testified that there were 

“various bruises [and] abrasions on [Complainant’s] thighs, the knees, the breasts, 

[and] the abdomen.” Fischer said these injuries were consistent with the biting and 

choking Complainant reported. Fischer also testified that Complainant had pain in 

and abrasions to her genitals. Fischer said the extent of Complainant’s genital 

injuries “is very rare to see.” 

Finally, forensic DNA analyst Zury Phillips testified with respect to the 

testing and analysis done on DNA samples recovered from Complainant and her 

clothing. Phillips testified that, based on her analyses of several items of evidence, 

there was “very strong support” for the proposition that Appellant was a 

contributor to the DNA mixture on swabs taken from Complainant’s genitals, neck, 

breasts, and clothing. 

C. Application

Turning to the first step in our analysis, the parties correctly agree that, as 

charged, sexual assault is a lesser-included offense of aggravated sexual assault. 

As relevant here, a person commits sexual assault if, “regardless of whether the 

person knows the age of the child at the time of the offense, the person 

intentionally or knowingly: . . . causes the sexual organ of a child to contact . . . 

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

§ 22.011(a)(2)(C). Aggravated sexual assault requires proof of the same elements

except that, as charged, the aggravating factor required proof that Appellant by acts 

or words placed Complainant in fear of serious bodily injury. See id. 

§ 22.021(a)(1)(B), (a)(2)(A)(ii); see also Junious v. State, No. 14-09-00400-CR, 

2010 WL 3946057, at *3 (Tex. App.—Houston [14th Dist.] Sept. 28, 2010, pet. 

ref’d) (mem. op., not designated for publication).

For the second step, we examine whether the record contains any evidence 

directly germane to the lesser-included offense, such that the lesser-included 

offense was a valid, rational alternative to the charged offense. See Sweed, 351 

S.W.3d at 68. We conclude that showing is not made here. 

Specifically, the record does not contain any evidence showing Complainant 

was not in fear of serious bodily injury during the sexual assaults. Complainant 

testified that Appellant made her have sex with him numerous times, including 

oral, vaginal, and anal sex. Complainant said Appellant was “rough” during the 

sexual acts and would “hold[] [her] throat down” with his hand. Complainant said 

she asked Appellant “to stop” “[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 wanting to leave” but “was scared to try.” 

Complainant also recalled that Appellant’s house had numerous guns and a long, 

machete-like knife. Complainant said she was “afraid” because of “all the 

weapons and how forceful [Appellant] was.”

The fear Complainant described is corroborated by other evidence. 

According 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 she needed to tell me 

something.” Deputy Sampson testified that Complainant told him she had sex with 
10

Appellant against her will. 

Likewise, Fischer recalled that, while Complainant was describing the 

sexual assault, Complainant said she “was scared because [Appellant and his 

friend] had so many guns and stuff.” Fischer also testified that Complainant 

“leaned forward hugging her arms around her waist and she looked down while 

giving her history. Her voice was shaking. She squeezed her legs together during 

the exam.” Fischer testified that there were bruises and abrasions on 

Complainant’s body consistent with the biting, grabbing, and choking she reported 

experiencing. Fischer also testified that Complainant had pain in and abrasions to 

her genitals and that the extent of Complainant’s genital injuries “is very rare to 

see.” 

No evidence was introduced at trial to refute or negate this evidence 

establishing Complainant’s level of fear during her encounters with Appellant. 

Similarly, this evidence does not support any alternative conclusions regarding 

whether Complainant was in fear of serious bodily injury. Complainant described 

several sexual assaults that took place over two days that left her bruised and in 

pain; these assaults occurred in an unfamiliar house that contained guns and a 

knife. Complainant’s fragile emotional state after the assaults was testified to by 

Deputy Sampson and Fischer. Fischer also testified regarding the types of injuries 

Complainant sustained and their extent. This evidence would not permit a rational 

jury to acquit Appellant of aggravated sexual assault while convicting him only 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 denying Appellant’s request for a 

jury instruction on the lesser-included offense of sexual assault.

We overrule Appellant’s first issue.
11

II. Confrontation Clause

In his second issue, Appellant asserts the trial court erred by overruling his

Confrontation Clause objections to two witnesses’ testimony regarding statements 

made by Beth, a non-testifying witness. Specifically, the witnesses testified 

regarding Beth’s statements that Appellant sexually assaulted her in an incident 

that occurred in August 2016.

2

A. Standard of Review and Governing Law

The Sixth Amendment provides that, in all criminal prosecutions, the 

accused shall have the right to be confronted by the witnesses against him. See 

U.S. Const. amend. VI; Crawford v. Washington, 541 U.S. 36, 51 (2004). The 

Sixth Amendment right of confrontation applies not only to in-court testimony but 

also to out-of-court statements that are testimonial in nature. Crawford, 541 U.S. 

at 51; Langham v. State, 305 S.W.3d 568, 575 (Tex. Crim. App. 2010). The 

Confrontation Clause “provides a simple yet unforgiving rule: the State may not 

introduce a testimonial hearsay statement unless (1) the declarant is unavailable to 

testify and (2) the defendant had a prior opportunity to cross-examine the 

declarant.” Lee v. State, 418 S.W.3d 892, 895 (Tex. App.—Houston [14th Dist.] 

2013, pet. ref’d). Whether a particular statement 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 Appeals has delineated three types of testimonial 

statements: (1) “ex parte in-court testimony or its functional equivalent”, i.e., 

“pretrial statements that declarants would reasonably expect to be used 

2 Evidence regarding this extraneous offense was admitted pursuant to Texas Code of 

Criminal Procedure article 38.37. See Tex. Code Crim. Proc. Ann. art. 38.37 § 1(b). Prior to

admitting this evidence, the trial court held a hearing outside of the jury’s presence and 

concluded the evidence would be adequate to support a finding that Appellant committed this

separate offense beyond a reasonable doubt. See id. art. 38.37 § 2(a).
12

prosecutorially;” (2) “extrajudicial statements contained in formalized testimonial

materials, such as affidavits, depositions, or prior testimony;” and (3) “statements 

that were made under circumstances which would lead an objective witness 

reasonably to believe that the statement would be available for use at a later trial.” 

Langham, 305 S.W.3d at 576.

The following principles are helpful in determining whether particular 

statements are testimonial: (1) testimonial statements are official and formal in 

nature, (2) interaction with the police initiated by a witness or the victim is less 

likely to result in testimonial statements than if initiated by the 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

and securing the scene are not testimonial. Amador v. State, 376 S.W.3d 339, 342-

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

472, 482 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). 

A Confrontation Clause violation is a constitutional error that requires 

reversal unless we conclude beyond a reasonable doubt that the error was harmless. 

See Davis v. State, 203 S.W.3d 845, 849 (Tex. Crim. App. 2006); Smith v. State, 

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 is not whether the evidence supported 

the verdict absent the erroneously-admitted evidence, but rather “the likelihood 

that the constitutional error was actually a contributing factor in the jury’s 

deliberations.” Scott v. State, 227 S.W.3d 670, 690 (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 State’s 

case; (2) whether the statement was cumulative of other evidence; (3) the presence 

or absence of evidence corroborating or contradicting the statement on material 
13

points; and (4) the overall strength of the State’s case. Davis, 203 S.W.3d at 852; 

Smith, 436 S.W.3d at 372. We also may consider the source and nature of the 

error, the extent of the State’s emphasis on the evidence, the relative weight the 

jury may have assigned to the evidence as compared with the balance of remaining 

evidence relevant to the issue, and any other factor contained in the record that 

may shed light on the probable impact 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. Relevant Evidence

For our analysis of this issue, we focus on evidence pertaining to the 

extraneous offense involving Appellant and Beth.

Nurse Fischer testified regarding the sexual assault examination she 

performed on Beth on August 8, 2016, and the forensic examination report she 

completed during the examination. According to Fischer, Beth was 15 years old

when she came in for the examination. Discussing Beth’s medical history, Fischer 

read her record of Beth’s statements regarding the assault. According to Fischer,

Beth said she met Appellant on an online dating application, met up with him once,

and had consensual sex with him in his car. Fischer said Beth discussed that she 

met Appellant for a second time a few days later and 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.” Beth 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 recalled that Appellant forced her to have oral, vaginal, and anal sex with 

him; Beth said she tried to scream but Appellant told her to “[s]hut up or he will 

kill” her and repeatedly “[c]hok[ed] [her] every time [she] made a noise.”

Fischer also testified regarding the injuries on Beth’s body, including bruises 
14

on her neck, chest, and arms. Fischer said the bruises were consistent with Beth’s 

statements regarding what occurred between her and Appellant. Fischer also noted 

that Beth had “a hoarse and raspy voice” as she was talking along with neck pain 

and pain while swallowing, which were consistent with her reports that she was 

choked. In addition, Fischer testified regarding the injuries to Beth’s genitals.

Next, forensic DNA analyst Jessica Powers testified with respect to the 

testing and analysis done on DNA samples recovered from Beth and her clothing. 

Phillips testified that, based on her analyses of the genetic material recovered from 

Beth’s genitals, the probability that Appellant was a contributor to that genetic 

material was significantly higher than if the material had come from another 

individual.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-morning 

hours of August 8, 2016, regarding an assault and proceeded to the reported 

location. Officer Eason testified that he found Beth sitting outside on the curb; 

Officer Eason recalled that Beth was “visibly upset” and “crying, shaking.” 

Officer Eason also stated that Beth had “bruising around her neck.”

According to Officer Eason, Beth told him “that she was raped” and that 

“the suspect penetrated both her anus and vagina.” Officer Eason said Beth 

reported that she was raped at two different locations: first “down the street from 

where she was picked up from” and later at the location to which Officer Eason

3 Specifically, for the first tested vaginal swab, Phillips said Appellant could not “be 

excluded as a possible contributor to the foreign male DNA profile deduced from this mixture. 

The probability that a randomly chosen, unrelated individual would be included as a possible 

contributor to the foreign male DNA profile deduced from this mixture is approximately one in 

55 quintillion individuals.” For the second tested vaginal swab, Phillips testified that Appellant 

also could not “be excluded as a possible contributor to the major component. The probability 

that a randomly chosen unrelated individual would be included as a possible contributor to the 

major component is approximately one in 26 octillion individuals”. 
15

responded. Officer Eason testified that Beth informed him the suspect had a gun 

that he threatened her with during the assault. According to Officer Eason, Beth 

also told him the suspect had choked her. After gathering this information, Officer

Eason said he drove Beth to the hospital. 

C. Application

Appellant’s Confrontation Clause issue challenges the testimony from 

Fischer and Officer Eason regarding what Beth told them about the assault. We

consider these individuals’ testimony separately. 

1. Fischer

As discussed above, nurse Fischer testified regarding the sexual assault 

examination she performed on Beth and read Beth’s account of the sexual assault

directly from her forensic examination form.

4

 Appellant asserts that these 

constitute testimonial statements and, because Beth did not testify at trial, the 

statements should have been excluded under the Confrontation Clause.

In Melendez-Diaz v. Massachusetts, the United States Supreme Court held 

that medical records, created for treatment purposes, are not “testimonial” in nature 

within the meaning of Crawford. 557 U.S. 305, 312 (2009). Following this line of 

reasoning, “[v]irtually all Texas courts that have considered the issue have 

concluded that when a patient gives a verbal history to a sexual assault nurse 

examiner or other medical professional during a sexual assault exam for the 

purpose of receiving medical treatment, the history is not considered testimonial 

within the context of Crawford.” Ervin v. State, No. 08-15-00025-CR, 2017 WL 

4 Before Fischer began this line of testimony, defense counsel objected and raised several 

grounds for the testimony’s exclusion, including the Confrontation Clause. The trial court 

overruled defense counsel’s objection, thereby preserving Appellant’s Confrontation Clause 

challenge for appellate review. See Tex. R. App. P. 33.1(a)(1). 
16

3614237, at *11 (Tex. App.—El Paso Aug. 23, 2017, pet. ref’d) (not designated for 

publication); see id. (collecting cases); see also Dobbs v. State, No. 02-17-00246-

CR, 2018 WL 3060093, at *3 (Tex. App.—Fort Worth June 21, 2018, pet. ref’d) 

(mem. op., not designated for publication) (noting that “[v]irtually all” Texas 

Courts have concluded that, when a patient gives a verbal history during a sexual 

assault exam, the history is not considered testimonial within the context of 

Crawford). 

The Austin Court of Appeals recently addressed a similar issue in a sexual 

assault case, in which a sexual assault nurse examiner testified regarding 

statements made by the complainant regarding the assault. See Murray v. State, 

597 S.W.3d 964, 973-74 (Tex. App.—Austin 2020, pet. ref’d). There, the 

complainant was admitted to the hospital for a suspected drug overdose and, two 

days after she was admitted, underwent a sexual assault exam. Id. at 968-69. 

During the exam, the complainant told the nurse she had been sexually assaulted 

by the defendant. Id. at 969.

On appeal, the defendant argued that the nurse’s testimony regarding the 

complainant’s statements violated his Confrontation Clause rights. See id. at 973. 

Citing Melendez-Diaz, the court of appeals rejected this argument and noted that, 

because the nurse’s testimony “establishe[d] that the primary purpose of [the 

complainant’s] statements during the patient history was for medical treatment, 

making the statements was 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., not designated for publication) (adopting 

Murray’s reasoning in a similar case). 

Guided by these authorities, we conclude that Beth’s statements to Fischer 

during the sexual assault examination were non-testimonial. Beth arrived at the 
17

hospital shortly after the assault occurred and underwent a sexual assault exam 

administered by Fischer. Testifying at trial, Fischer stated that she collected from 

Beth information about the assault “for medical purposes” and “[t]o properly 

diagnose and treat” Beth. Broadly describing her role in this process, Fischer 

testified that “a sexual assault nurse examiner is a registered nurse that has been 

trained to provide comprehensive care to sexual assault patients, trauma informed, 

able to do the health and welfare needs of the patient while taking a traumainformed approach for someone who has gone through a trauma such as sexual 

assault.” Similar to Murray, this evidence shows that the primary purpose of 

Beth’s statements to Fischer was for medical treatment; therefore, the statements 

are non-testimonial. See Murray, 597 S.W.3d at 973-74; see also Bohanna, 2021 

WL 1917663, at *5-6 (evidence of two extraneous sexual assaults was admitted

during the punishment phase of the appellant’s trial; concluding the nurses’

testimony regarding the extraneous-offense complainants’ statements about the 

assaults was non-testimonial, this court noted that “the examinations and

obtainment of a verbatim history from each complainant was for the purpose of 

diagnosis and treatment”).

We overrule Appellant’s Confrontation Clause issue with respect to 

Fischer’s testimony. 

2. Officer Eason

As discussed above, Officer Eason testified about Beth’s statements to him 

when 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 

assault, and that the suspect threatened her with a gun. Appellant asserts that these 

were testimonial statements and, because Beth did not testify at trial, the trial court 
18

erred by not sustaining his Confrontation Clause objection.

5

We presume without deciding that the trial court erred by overruling 

Appellant’s Confrontation Clause objection to Officer Eason’s testimony regarding 

Beth’s statements to him. We nonetheless conclude beyond a reasonable doubt

that the error was harmless. See Tex. R. App. P. 44.2(a).

First, this testimony addressed an extraneous offense rather than the 

aggravated sexual assault for which Appellant was on trial. The jury was 

instructed as follows with respect to the extraneous offense:

You are further instructed that if there is any evidence before you in 

this case regarding the defendant’s [sic] committing an alleged 

offense or offenses other than the offense alleged against him in the 

indictment in this case, you cannot consider such evidence for any 

purpose unless you find and believe beyond a reasonable doubt that

the defendant committed such other offense or offenses, if any, and

even then you may only consider the same in determining intent, 

preparation or plan, if any, in connection with the offense, if any, 

alleged against him in the indictment and for no other purpose.

See also Tex. Code Crim. Proc. Ann. art. 38.37 § 2(a)(1).

Officer Eason’s statements regarding what Beth told him were cumulative of 

other evidence pertaining to the extraneous offense. Specifically, Fischer testified 

to the same regarding Beth’s account of what transpired between her and 

Appellant. Both Fischer and Officer Eason testified about Beth’s injuries and 

Officer Eason noted that, when he first arrived on the scene, Beth was “visibly 

upset” and “crying, shaking.” Numerous photographs of Beth’s injuries also were 

admitted into evidence. DNA analyst Powers testified that, based on her analyses 

5 Before Officer Eason began this line of testimony, defense counsel objected and raised

several grounds for the testimony’s exclusion, including the Confrontation Clause. The trial 

court overruled defense counsel’s objection, thereby preserving Appellant’s Confrontation 

Clause challenge for appellate review. See Tex. R. App. P. 33.1(a)(1). 
19

of the genetic material recovered from Beth, the probability that Appellant was a 

contributor to that genetic material was significantly higher than if the material had 

come from another random individual. This evidence, considered in conjunction 

with the challenged statements, supports the conclusion that the challenged 

statements were not a contributing factor in the jury’s deliberations. 

Moreover, the overall strength of the State’s case with respect to the charged 

offense was strong. Complainant testified about her interactions with Appellant 

and said he repeatedly sexually assaulted her over a two-day period; Complainant

identified Appellant in court as the person who assaulted her. Complainant also 

said Appellant choked her during the assaults and left bruises and abrasions on her 

body. Numerous photographs were admitted into evidence showing bruises on 

Complainant’s body.

Complainant’s testimony was corroborated by testimony from other 

witnesses. First, Deputy Sampson testified regarding his interactions with 

Complainant after he found her in Appellant’s vehicle. Deputy Sampson recalled 

that Complainant was “nervous”, “appeared upset”, and “was scared.” According 

to Deputy Sampson, Complainant told him she had sex with Appellant against her

will. 

Second, nurse Fischer testified regarding the sexual assault exam she 

performed on Complainant. Fischer said Complainant provided the same account 

regarding what occurred between her and Appellant. Fischer also testified 

Complainant told her she “was scared because [Appellant and his friend] had so 

many guns and stuff.” According to Fischer, Complainant had bruises, abrasions, 

and pain on her body consistent with the injuries she had reported. 

Finally, DNA analyst Phillips testified regarding her analyses of several 

items of evidence and concluded there was “very strong support” for the 
20

proposition that Appellant was a contributor to the DNA mixture on swabs taken 

from Complainant’s genitals, neck, breasts, and clothing. The strength of this

evidence pertaining to the charged offense reinforces our conclusion that Officer 

Eason’s testimony regarding Beth’s statements to him was likely not a contributing 

factor in the jury’s deliberations. 

We overrule Appellant’s Confrontation Clause issue with respect to Officer 

Eason’s testimony.

III. Motion for Mistrial

In his final issue, Appellant asserts the trial court erred by denying his 

motion for mistrial during the punishment phase. Appellant moved for a mistrial 

after one of the State’s experts testified regarding the significance of Appellant’s 

tattoos.

A. Standard of Review and Governing Law

We review the denial of a motion for mistrial for an abuse of discretion. 

Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). When deciding 

whether the trial court abused its discretion, we examine the particular facts of the 

case. Green v. State, 554 S.W.3d 785, 790 (Tex. App.—Houston [14th Dist.] 

2018, no pet.) (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). 

“A mistrial is an appropriate remedy in ‘extreme circumstances’ for a narrow class 

of highly prejudicial and incurable errors.” Ocon, 284 S.W.3d at 884 (quoting

Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (en banc)). 

In deciding whether to grant a mistrial, the trial court 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. Our review of the trial court’s 

ruling on a motion for mistrial balances three factors: “(1) the severity of the 
21

misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of the 

punishment assessed absent the misconduct (likelihood of the same punishment 

being assessed).” Id. 

With respect to witness testimony, ordinarily a prompt instruction 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, 783 (Tex. Crim. 

App. 2000) (en banc)). Similarly, “inadmissible evidence can be rendered 

harmless if other evidence is admitted at trial without objection and it proves the 

same fact that the inadmissible evidence sought to prove.” Harris v. State, 164 

S.W.3d 775, 783 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (internal 

quotation omitted). 

B. Relevant Evidence

Seven witnesses testified at Appellant’s punishment hearing. The first 

witness, Anne, testified regarding an incident in which Appellant sexually

assaulted her. Four other witnesses testified with respect to this incident, including 

Anne’s father, Anne’s sexual assault nurse examiner, the forensic DNA analyst 

who analyzed the evidence in the case, and the investigating detective. 

Officer Moore, a canine supervisor with the Harris County Sheriff’s Office, 

was the sixth witness to testify. According to Officer Moore, he and his dog 

helped apprehend Appellant after Appellant ran from his vehicle the day he was 

attempting to drop Complainant off at Pizza Hut. Officer Moore testified that 

Appellant was found hiding under a trailer home and arrested at the scene. During 

Officer Moore’s testimony, numerous photographs of Appellant taken shortly after

his arrest were admitted into evidence. The photographs show several tattoos on 

Appellant’s body including: (1) “MS X3” on his lower back; (2) “Thug” on his 

upper left arm; (3) “No Bitch Feel My Pain” on his lower right arm; (4) “M S” on 
22

his chest; (5) a hand folded into a sign resembling horns with “13” on the middle 

knuckles on the left side of his chest; and (6) “Original Killa From Honduras” on 

his lower abdomen.

Detective Rivas was the last witness to testify. Detective Rivas said that he 

has worked in the Houston Police Department’s gang division for eight years and 

“specifically investigate[s] MS-13 members”. Detective Rivas said “MS-13 stands 

for ‘Mara Salvatrucha trece,’ which translates to the Salvadorian gang. The 13 

represents their allegiance to the Mexican Mafia.” 

Detective Rivas said MS-13 “follow[s] a motto [that] includes kill, rape, and 

control”. Discussing the requirements for MS-13 members, Detective Rivas 

testified that “MS-13 recognizes members of homeboy, hold a rank of homeboy, 

and above. They don’t take into consideration the guys that are trying to achieve 

that rank. And to become a homeboy, you have to have many murders under your 

belt.” Detective Rivas testified that MS-13 members may be identified by “tattoos, 

their slang, [and] certain words that they use within the members.” Discussing the 

MS-13’s “recruitment process,” Detective Rivas testified that “[a] lot of it is they 

try to see if they are true to their barrio, which refers to their neighborhood and if 

they are willing to conduct these killings as well and identifying rival gang 

members.” When asked what makes MS-13 “so dangerous compared to other 

gangs”, Detective Rivas said it is the gang’s “willingness to conduct these 

gruesome murders”.

Based on Appellant’s tattoos, Detective Rivas opined that Appellant is a 

member of MS-13. Viewing specific photographs of Appellant’s tattoos, Detective 

Rivas testified that the “M S” on Appellant’s chest and the hand gesture on the left 

side of Appellant’s chest reference MS-13. When asked what these tattoos

“mean”, Detective Rivas said: “For me it means these tattoos that he ha[s] on 
23

there, he has to hold the rank of homeboy and above to have them and which, as I 

stated earlier, requirements are that he has a couple of murders under his belt . . . .” 

Defense counsel objected to this response. Sustaining the objection, the trial court 

instructed the jury to “disregard the testimony with regard to murders.” The trial 

court denied defense counsel’s motion for a mistrial. 

On cross-examination, defense counsel asked Rivas if he was “saying that 

everybody that is a MS-13 member is a killer?” Rivas replied: “Who has the tats, 

yes; and they are trying to achieve the rank of homeboy, yes.”

C. Application

We conclude the trial court’s denial of Appellant’s motion for mistrial does 

not constitute an abuse of discretion. See Ocon, 284 S.W.3d at 884.

First, after the trial court sustained Appellant’s objection to Rivas’s 

testimony opining that Appellant “has a couple of murders under his belt”, the trial 

court promptly instructed the jury to disregard the testimony with regard to the 

referenced murders. A prompt instruction to disregard generally is sufficient to 

cure any error associated with witness testimony. See Green, 554 S.W.3d at 790; 

see also Herrero v. State, 124 S.W.3d 827, 836 (Tex. App.—Houston [14th Dist.] 

2003, no pet.) (“A prompt instruction to disregard will ordinarily cure error 

associated with an improper question and answer regarding extraneous offenses.”). 

Second, the substance of the objected-to response was admitted through 

other evidence to which Appellant did not object. See Harris, 164 S.W.3d at 783.

Detective Rivas testified that MS-13 “follow[s] a moto” that includes killing and, 

in contrast to other gangs, evidences a “willingness to conduct these gruesome 

murders.” According to Detective Rivas, MS-13 only recognizes “a rank of 

homeboy[] and above” and, to become a “homeboy”, “you have to have many 
24

murders under your belt.” Detective Rivas said that members of MS-13 may be 

identified by their tattoos and, based on Appellant’s tattoos, he opined that 

Appellant is a member of MS-13, i.e., a “homeboy”. This unobjected-to line of 

testimony permits the inference that Appellant, as a member of MS-13, has 

committed murders. 

Similarly, on cross-examination, defense counsel asked Rivas if he was 

“saying that everybody that is a MS-13 member is a killer?” In response, Rivas 

said “[w]ho has the tats, yes”. 

Based on this record, we conclude the trial court’s denial of Appellant’s 

motion for mistrial does not constitute an abuse of discretion.

CONCLUSION 

We affirm the trial court’s judgment. 

/s/ Meagan Hassan

Justice

Panel consists of Chief Justice Christopher and Justices Hassan and Poissant. 

Do Not Publish — Tex. R. App. P. 47.2(b).