## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 18

- 0 043 4

- C R

_____________

______________

On Appeal from Criminal District Court No. 1

Tarrant County, Texas Trial Court No. 1548 964R

D issenting Opinion by Justice Womack 

### R OBERT 

### F. H ALLMAN 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 DISSENT ING OPINION ON REMAND

I. I NTRODUCTION The majority 1 holds tha t the trial court ab use d its discretion by denying Appellant Robert F. Hallman ’ s motion for mistrial and that the resulting harm aff ected his substanti a l righ t s. Therefore, the majority reverse s the t rial court ’ s judgment and remand s the case for a new trial. Th e majority ’ s disposition stems from thirteen page s of undisclosed discovery

— and in particular Hallman ’ s ex
- wife ’ s (Kim ’ s ) ten

- lin e hand w ritten w i tness

statement

— from an extraneo us incident that occurred over a year and a half before the initi al out cry of se xual a buse in t his case

. T hi s prior inciden t involve d neither allegations of sexual abuse no r allegations of any kind again st Hallman by the

c o mplainants (Rit a and Amy) but instea d involved Hallman ’ s physical assault of his

ex
- wife and son ( Ron)

. Hallman claims that lac k of access to this d iscovery in the guilt

– innocence stage deprived him of the opportunity t o f u l l y develop his defen s ive theo ry tha t his ex

- wife and the comp lainants were lying. Because ( 1) the offense

1 For ease of reference, I use the term “ majority ” to refer to the opinion authored by Justice Wallach in this case. I recognize, however, that in the concurring opinion authored by Justice Wa lker, Justice Walk er notes that h e “ cannot jo i n the majo rity opin ion, ” alth ough he does agree with the result of the judgment. See Tex. R. App. P. 41.1(a) ( “ A majority of the panel, which constitutes a quorum, must agree on the judgment. ” ). Th erefore , while there is a maj ority of t h e pa nel agreeing t o the jud gment, we may not have a “ majo rity opinion. ” See Unkart v. State , 4 00 S.W.3d 94, 100 (Tex. Crim. App. 2013) ( “ An ‘ opinion of the Court ’ or ‘ majority opinion ’ is one that is joined by a majo rity of the judges participa ting in th e cas e. ” )

.3

report from the extraneous inci dent

— containing essent

ially the same informat

ion as the written statement

— was timely disclosed , ( 2) Hallman was ab l e to succ essfu lly impeach his ex

- w

ife ’ s testimony through the investi g at ing detective ’ s testimony on the same issue, and (3 ) the great weig ht of the evi dence

— which involved twelve guilt

– innocence stage witnesses over the course of an eight

- day jury trial

— s upports the

co n viction, I would ho ld tha t the trial cou rt did not a b use it s discretion by deny ing the motion for mistrial and that Hallma n ’ s substantial rights were n ot affected by the trial

court ’ s denial of the motion for mistrial . Therefore, I respect f ully dissent. II. T HE A PPROPRI A TE A NALYSIS : M

OSLEY OR R ULE 44. 2( B ) ? In granting t he State ’ s petition for discretionary review, the C ourt of Crim inal Appe als remanded this case to us “ for further consi deration and disposition consistent with Watkins [ v. State , 619 S. W .3d 265 (Tex. Cri m . App. 2021)]. ” Hallman v. State , 620 S.W.3 d 9 31, 931

– 32 (Tex. Crim. App. 2021). As a preliminary matter, it is

un clear how we should analyze Hallman ’ s appeal. In his supplemental brief, Ha llman argues that we should app l y the harm ana lysis under Texas Ru le of Appellate Procedure 44.2(a

) , requir ing reversal unless it can be determined beyond a reasonable doubt th at the error did not co ntribute to his conviction

. Se e Tex. R. App . P. 44.2(a). T he S t ate counters that th e proper harm anal ysis here is under T ex as Rule of Appellate Procedure 44.2( b ) , requiring error to be disregarded if i t does not affect Hallman ’ s substantial rights

. See Te x. R. App. P. 44.2(b). Alternat i vely, if the standard for reviewi ng the de nial of a motion for mistr ial applies, the S ta te argues that the4

three

- factor test in Mosley v. Stat e applies. 98 3 S.W.2d 249, 259 (Te x. Crim. App. 1998 ). The Mosley factors are: (1) the severity of the miscond u ct , (2) the me a sures adop ted to cure the misconduc t , and (3) the c er tainty of convicti on absent the mi sconduct. Id. A fter discussin g these various analys e s, t he maj ority applies the Mosley test to e valu at e whether the trial court abused its discretion b y denying
H allman ’ s mot

ion for mistrial. However, it is no t clear whether the use of t he Mosle y fact ors is a ppro priate for the issue raised in this appeal. The Mosle y factors seem to be chiefly utilized in cases invol ving a motion for mistrial follow ing improper argument by a pr osecutor. See , e.g. , Archie v. State , 221 S.W.3d 695, 700 ( Te x. Crim. App. 2007) (a pplying Mosley factors in case involving improper argument made by a pro s ecutor); Hawkin s v. Sta te , 135 S.W.3d 72 , 75

– 76 (Tex. C r im. App. 2004) ( same ); Mosley , 983 S.W.2d at 259 (s ame) ; see also G arcia v. State , No . 10

- 12

- 00202

- CR, 20 13 WL 34 82009, at *1 ( Tex. App.

— Waco July 11, 2013, pet. ref ’ d) (mem. op., not designated for publication) ( “ Because t he Court of Criminal Appeals ha s not adopted th e Mosley/Hawkins factors in evaluating the denial of a motion for mistr ial pursuant to an y re ason o ther t han impr oper argument
. . . we do not use tho se factors in our review

. . . . ” ). Indeed, when the Texa s Court of Criminal Appeals est a b lished the Mosley f actors , it noted that the factors had previously been applied by f ederal courts when

a ddressin g “ im p roper ar gument cases . ” Mosley , 983 S.W.2d at 259. Mosley itself was an imprope r argument case, which c an be seen in Mosley ’ s recitati o n of the first5

factor: “ severity of the misconduct ( the magnitude of the pr ejudicial effect of the pros ec

ut or ’ s

rema rks )

. ” Id. (emphasis added). Th e Mosley factors are not typically used to review a

case like this on e , where the motion for mistrial was raised in the punishment stage following the untimely disclosure of Article 39.14(h) e v idence during tha t stage . And it is perhaps no wonder that they are not used , as Mosley ’ s secon d factor

— the

m easures adopted to cure the mis conduct

— is en tirely inappli c able here bec ause the complained

- of evidence was not provided until the punis hment sta ge, t h us making

an y cure impossible

. In stead of utilizing the Mo s ley factors , the issu e of whether the trial court abused its d iscretion by denying Hallman ’ s motion for mistrial is best addressed by determining whether the State ’ s vio lati on of Arti cle 39. 14(h) affected Hal lm an ’ s substantial rights

— essentially , a harm a nalysi s under Texas Rule of Appellate Procedure 44.2(b)

. See Tex. R. App. P. 44.2(b). This approach is consistent with our
recent opinion in S opk o v. State , 637 S .W.3d 252 (Tex. App.

— Fort W o r th 2021, no pet. ) , where we held that a harm analysis under Rul e 44.2(b) wa s necessary to address a statutory violation of Article 39.14

. This approach also squares w i th how some of our sister courts have addressed violation s of A rticle 39.14. See Will iamson v. State , N o. 04

- 20

- 00268

- CR, 2021 WL 4976326, a t * 3 (Te x. App.

— San An tonio Oct. 27, 2 02 1, no pet. ) (mem. op. , not design ated for publicatio n) ( “ Violat ions of sta t utory duties under [A

]rticle 39.14 of the Te xas Code of C rimina l Procedure wa rrant a h arm analysis. ” ) ; P er

kins v. State , No

. 03

- 19

- 00356

- CR, 2 021 WL 2172547, at *3 (Tex.6

App.

— Austin May 28, 2021, no pet.) (m em. op., not designate d for publi cation) ( “ Revie w ing courts must conduct a harm analysis befo re determinin g whet her reversal i s proper for violation of [ A] rticle 39.14. ” ). This analysis is still co nsistent with Hawkins , where the Texa s Court of Criminal Appeals c autioned that “ [a] harm ana lysis is empl o yed only when there is error, and

or dinarily, error occurs only when the tria l cou rt m akes a mistake ” bu t also

a cknowledge d that “ whe t her a mistrial should have been granted involves mos t, if not all, of the same considerations that at tend a harm analys is

. ” 135 S.W.3d at 76

– 77. A n d , applying a Rule 44.2 (b) harm analysis cu ts to the heart of the iss u e
— the i mp act of the State ’ s failure to timely disclose the complained

- of thirteen pages

— better than applying the Mosley factors

. 2 Wh ile ap plying a Rule 44. 2 (b) harm analy sis appears to be the appropriate method for analyzing Hallman ’ s issue o n appeal , I wil l a na ly z e the issue under both the Mosley factors and R

ule 44.2 (b)

. Regardless of which analysis is used, I conclude that the trial court did not abu se i t s discretion by denying Ha llman ’ s motion for mistria l.

2 Rule 44 .2(

b) is not li mited to addressing “ errors ”

— the Rule expre ssly states,
“ Any other error, d efect, irregularity, or var iance that does not affect substantial rights must be dis regarded. ” Tex. R. App. P. 44. 2( b).7 I II
. A NA LY SIS U NDER M

OSLE Y As noted abo ve, t he majority applied the three Mosley factors to a ssess whether the trial court abused its discretion by denying Hallman ’ s motion for mistrial

. I will address these factors in tu rn. A. The Severity of the Misconduct Prejudic ial effect i s the touchs tone o f the f ir st Mosley factor. Hawk ins , 135 S.W .3d at 77; West v. S t ate , No. 02

- 18

- 00109

- CR, 2019 WL 3491937, at *2 (Tex. App.

— Fort Worth Aug. 1, 20 19, no pet.) (mem. op. , not designated for publication). Thus , t o analyze the se ver ity of th e misconduct prese nt here, one must assess th e prejudicial eff

ect of the compl ained

- of thirt een pages , which include the following : (1) De tective R oble s ’ s affidavit , (2) Hallman ’ s handwritten statement , (3) Kim ’ s ha ndwritten statem ent , and (4) a f amily

- vi olence packet

. 1. The Pre judicial Effect of Dete ctive Robles ’ s Affidavit Detec tive Rob les ’ s affidavit is a one

- page document in which h e describes what occurred during the August 10, 2014 incident. As n oted by the majori ty, “ Detective Robles ’ s affida vit containe d the sa me infor mation as his o ffense report

. ” Indeed, De tective Rob les ’ s affidavit is a near

- verbatim r e peat o f the information contained in his offense report. No tably, the offense report was disclosed to Hallman during pretrial disco very. Thus, because the s ubs tance of the information contained in Detective Rob les ’ s affida vit is the same as the subs tance o f the informat i on contained in the offense rep ort, the unti mely disclosure of Detective Robles ’ s affidav it had no8

prej u dicial effect. S ee Wyatt v. S t ate , 2 3 S.W.3d 18, 27 (Tex. Crim. App. 2000) (holding th a t because information contained in undisclosed pathol ogist ’ s re port was materially

t he same as information contained in witness ’ s testimo ny, there was “ n o reasonable
p r obability that, h ad the [pathologis t ’ s report] been disclosed to the defense, the

outco m e of the proceeding would have been different ” ). 2. The Pre judicial Effect of Hallman ’ s Han dwr itten Statement Hallman ’ s handwritten sta tement is a one

- page docume nt in which he descri bes what occurred du ring the August 10, 2014 i ncident. In h i s statement , H allman describes that he went to h is neighbor ’ s house t o wait on h is si ster to pick Amy and him up ; that Kim fo llowed Amy and h im to the n eig hbor ’ s house ; that Kim grabbed Amy and h im ; that Amy be gan h aving an asthma attack and said she coul d not breathe ; that he pulled Kim off Amy ; that R on bit him ; and that Ron was

un i ntentionally bumped in the process

. The infor ma tio n contained in the offense
repor t

— which was disclosed to Hallman in pre trial disco ve ry
— contains materially the

sam e information as that contained in Hallman ’ s hand written statement

. T he offense report describes how Hallman told officers th at he was going to his neig hbor ’ s house to call his sister to come and pick him up ; that Amy wante d to leave with him and followed him ; that Kim grabbed him and tried to get his p hone out of his pocket ; that Kim grabbed Amy ; that Amy told Hallman that she could not breath e ; that Hal lman grabbed Kim to try and pull her away from Amy ; t hat Ron bit hi m ; a nd that he did not hit Ron u n les s it was by a ccid ent.9

B ecause the sub s tance of the information contai ned in Hallman ’ s handwritten

statement is the same as the sub s tance o f t he informati on contained in the offense report (neither of whic h mentions any all eg ation of sexual abus e ) , the unti mely disclosure of Hallman ’ s handwrit ten statement had no prejudicial effect. See id. Moreov er, there cannot be any pre judicial eff ect stemming from the untimely disclosure of H all man ’ s ha ndwritten stat ement because Hall ma n made the statement and was thus aware of its co ntents. 3 See Ha vard v. S t ate , 8 00 S.W.2d 195, 204 (Tex. Crim. App. 1989) ( “ [

A]ppellant knew of both the existence a nd the content of his

s tatement , as a matter of simple logic, because h e was there when i t was made. ” ) ; see als o Garcia v. State , No. 13

- 15

- 00527

- CR, 2017 WL 3530926, at *3 (Tex. App.

— Corpus C hristi

– Edinburg Aug. 17, 2017, no pet.) ( mem. op., n ot designated for publication) ( “ [A]ppellant ’ s complaint relat es to the disclosure of information alr ea dy known to appellan t

— his own statement to law en forcement. The State has no aff irma tive duty

t o disclose information alr eady know n to a defe ndant. ” ). 3
. The Pre judicial Effect of Kim ’ s Handwr itten Statement Kim ’ s handwritten statemen t is a one

- page do cu ment containing a pp r oxi matel y four sentences in wh ich s he describes what occurred durin g the August 10, 2014 i ncident. In her state ment , Kim describes Amy trying to le ave with Hallman to go to

3 The offe nse r e port als o m enti oned that Ha ll man “ was given hi s chanc e to write his statement , ” which should have al erted Hallman and h is counsel to the potential existence of Hallman ’ s handwritten statement.10

his sister ’ s house to s moke marijuana ; Kim refusing to let A my go ; Ha ll m an telling Amy to run away ; Kim go ing to the neigh bor ’ s house and taking Amy by the arm and try ing to pull her back ; Hallm an hitting Kim in the right arm and twisting her arms behind her back ; Ron biting Hallman ; and H allman h itting Ron in the fa c e and

st o mach

. H allman takes issue wi th the unti mely disclosure of Kim ’ s handwritten

s tatemen t becau se while Kim testifi ed that she had told pol ice officers during the August 10, 2014 incident that she suspecte d Hallman of sexual ly a bus i ng Amy , Kim ’ s ha ndwritten statem ent d oes no t mention sexual abuse

. Hallman cont ends that h e would have impeached Kim with her handwritten statement if it had been timely disclosed. And, according to the maj or i t y, “ t here was no better evi d ence with wh ich to impeach Kim ’ s testimony ab out her sexual

- a bus e suspi c ions than her own written words

. ” I disagree. The credibility of Kim ’ s statement that she had told police officers during the Augus t 10, 2 01 4 incident that she sus pected Hallman of sexually abusi ng Am y was al ready c alled int o question through the testimony of Detective Robles. Detective Robles specifically testified that Kim “ never said anything ” to him regarding her concern that one of her c h ildren was being sexua lly abused. D etective Robles fu rth er testified th a t there was no mention to Officer Oakley

— another officer at the scene on August 10, 2014

— regarding any concern that one of Kim ’ s children was being sexually abused

. I f Kim had mentione d any concerns about sexual abuse of her11

chil dren, D etective Rob les sa id that he “ would have inve stigated further. ” De tective Robles also testified that he had not been trained in how to inter view children a bout sexual ab u se and that it would n ot have been appropriate for him to “ have go ne over to any o f t he children involv ed in this case and start [ ] asking about where [Hallman] had touched them

. ” Any gap between the potentia l value of attacking Kim ’ s credib i li t y through her handw ritten statement a nd the value of attacking K im ’ s credibility through Detec t ive Rob les ’ s test

im ony is mi n imal. If a nything, Detective Robles ’ s testimony is better impeachment evidence t han Kim ’ s handwritten statement because his te s t im o n y actually contradicts Kim ’ s t estimony that she had told police officers ab out her suspici o ns of sexual abuse , wh ile Kim ’ s handwr itten statement i s merely silent on the issue. 4 Moreover , the information contained in Kim ’ s handwritten statement is

su b s ta n tially similar to the informati on contained in the offense report regarding what Kim told po li c e officers on Aug us t 10, 2014. The information in the offense r eport

— which was disclosed during pret rial discovery

— doe s not m en t

ion that Kim told police office rs about her suspicion of Hallman ’ s sexual ab use. Hallman co uld have attacked

4 The majority stat es that “ wh ile Kim clai med at tr i al that on August 10, 201 4, she had t ol d th e pol ice t hat she suspected Hallman was sexually abusing Amy, her own writte n statement clearly demonst ra tes otherwise. ” This conclusion goes too far

. Just b ecause Kim ’ s handwr itten statemen t , whic h sp an s j us t a handful o f sentences , d o es not menti on her repo rt of sexual abuse to police officers on August 10 , 2014 , that does not “ clearly demo nstrate ” that she did not voice her su spici ons to police

.12

Kim ’ s credibilit

y with the offense r e port in almost exactly the same way that he could have attacked her credibility with her handwritten s ta t e me n t. Finally, to the extent that Kim ’ s handwritten statement could have been valuable in att ack

in g her credibility in ways that could not have bee n done t hrou gh Detective Robles ’ s testimony or the disclosed offe nse report, that value is minimal when un de r st o od in the context of th e entir e case. First, t his extraneous incident

occu rred over a year and a half before the first outcry in this case. Se co nd, it involved Hallman ’ s assault

ing Kim and Ron , not his sexual ly assault ing the complainants

. 5 Third , K i m i s just one witness among many, and as I explain below, there is sub stantial evidenc e to suppor t Hallman ’ s conviction. There i s no rational expl an ation for how Hallman ’ s potential cross

- ex amination of Kim with her handwritten statement would be the pro v er b ial “ s traw that broke the camel ’ s back. ” 4
. The Pre judicial Eff

ect of the Famil

y - Violence Packet Th e family

- vio lence packe t contains a few p ag es of in formation relating to the August 10, 2014 i ncident and was fille d out by Officer Oakley, one of th e p o lice

5 Indeed, it was the credibilit y of the complai nants tha t was e m phasized by the State in it s opening st at ement: “ [Y]our job is to weigh the credibility of these girls

. . . . After you hear from all of the evidence, all of the witnesses in this case, it comes down to the girls. And yo u ’ re g oing to we igh w heth er or n o t you believ e the m . ” Th e e mphasis o n t he credibil ity of the complain an ts continued i n closing argument when the State sai d, “ These are the kinds of cases, these child sexual abuse cases comes dow n to d o you believe th em or not
. . . . Toda y i s the opportunity that yo u can tell them that despit e what happ ened to them in 2010, 2011, 2012, 2013, ’ 14, ’ 1 5 and ’ 16, that today , we believe you. ”13

officers respo ndi ng to the August 10, 2014 incident. Hallman complains about the untimely disclos ure of the family

- viole nce packet, arguin g t hat he would have used the family

- violence packet to at t ac k Kim ’ s credibility dur ing the guilt

– innocence stage of the trial. Hallman points to two checklists in the family

- violence packet, one titled

“ Condition of Victim Upon Office r Arriva l ” and the o ther titled “ Description of
I n ci d ent , ” a rguing that he would have attacked Kim ’ s credibil ity with t he fact that Off icer Oakley did not check the box for “ Sexual Assault ” on either checklist. However , Kim ’ s credibility c ould not be effe ctively att a ck e d t hr ough this evidence because the che cklist relating to the condition of the vict im (i.e., the co ndi tion of Kim and Ron) would not capture any report of sexual assault against Amy , nor would the checklist relating to the descripti on of the incident ( i .e . , t he physical assault o n August 10, 2014, not a prior sexual assaul t) capture a r eport of sexual assault

. Hallman also notes that the checklist titled “ Descri ption of Incident ” contain s boxes for “ Threat of Retaliation ” and “ Threat of Phys ical Violen c e ” and t h at those boxe s were unchecked. Hallma n a rgues that he would have attacked Kim ’ s cred ibility with th is e vidence because Kim had testified that Ha llman had once stated that he would “ kill all of us ” if he ever we n t t o jail. O n ce again, this do es not exp la in h ow Kim ’ s credibility would be effectiv ely attac ked through this e vidence because th at checkli st related to the description o f the August 10, 2014 incident, which did not inv o lv e any t h reats of retaliation or threats of phys ical viol ence.14

H allm an als o points to a che cklist titled “ Dem ea nor on s cene, ” which contains

a checked box f

or “ Calm ” to reflect the respective dem eanors of Rita, Amy, and Kelly (a nother daughter of Hallma n ’ s ) during the August 10, 2014 incident. Hallman argues

t hat he would have us ed this evi d ence to attack Kim ’ s credibility be cause she had testified that Amy and Kelly had been upset during the August 10, 2014 inciden t. Again, I do not see how Kim ’ s credibility would be effectively attacked through this evidence

. T he alleg ed dis cr epancy can be easily explained as the children being c alm during one part of the incid ent and upset during a no t her. Th is explanation gains credence because t he offense report noted that Amy “ got upset ” when asked by police fo r further details of the inc id ent. Moreover, any discrepancy between Kim ’ s testimony and the checklist regarding the childre n ’ s d e meanor during the August 10, 2014 incident does not undermine the substantial te stimony detailin g Hallman ’ s sexual abuse of Amy. And w hile I do not see ho w the timely disclosure of the family

- violence packet would have any value in attacking Kim ’ s cre d ib i lity , to the extent that it d oes contain

some value, the offense report contain s much of the sa me information as the family

violence pa cket. Much like t he family

- violence packet, the offense report does not mentio n s e xual abuse nor does it mention threats of physical violence

. Ha llman could15

ha ve attacked Kim ’ s credibility with the offense report in much the sam e way that he could have a ttacked her credib il ity with the family

- violence packet. 6 5. Summary of the P r ej u dic ial Effect of the Complained
- Of Evidence In s um, I do not th ink that the u ntimely disclosu re of the complained

- of evidence had a prej udicial ef fect on Hallman

. See Hawk in s , 135 S.W.3d at 7 7; West

, 2019 WL 3491937, at *2

. Much of the information c o nt a ined in the complained

- of evid ence was also contained in th e timely

- disclosed o ff ense report
. Hallman had other means to attack Kim ’ s credibility outside of the com plained

- of evidence

— most

n o t ably through Detective Rob le s ’ s testimony and the offense r e po r t

— and any value that Hallman could have gained by using the complained

- of evidence wa s de minim i s . The first Mosley factor weighs against Hallman. B. The M easures Adopte d to Cure the Misc on duct Th e second Mosley factor

— t he m easures adopted to cure th e mi sconduc t

— does not appear applicable here , and t he parties evidently agree. In Hallm an ’ s brief on remand , he states , “ The second factor, curative m easures, is inappli cabl e since there were n o ne. The evidence was not revealed unt i l th e damage was do n e a nd the verdict returned. ” In the State ’ s b rief on re mand, the State notes , “ [B]ecause the only relief requested was a mot ion fo r mistrial, wh ich was denied by the trial cou rt, consideration of the second factor

— measures ado p te d to cure the misconduct

— is

6 Notably , t he offense r eport mentioned that “ [t]he Family Violence Pac ket was c ompleted. ” Tha t reference , lik e the one to Hallman ’ s statement, s hould hav e p ut Hallman and his counsel on noti ce of the existence of th e family

- violence packet

.16

largely irrel evant. As such, the State will focus on the fi rst and third factors of the Mosley test. ” Despite the parties ’ lack of emphasis on the second Mosley factor, t h e major i ty

s tates th at this fa c to r “ weigh[s] heavily in favor of a mistrial. ” According to the maj ority, this is so because “ nothin g in the record be fore us reflects t hat the elected judge in this case took any steps to mitigate the harm from the be l ated disclos ure or

t o f am iliarize herself with the guilt

– innocence proceedings

. ” This reas oning fails for

two reasons . First, because the complained

- of eviden ce was not provided to Hallman until the punishment sta ge, t here w as nothing for t h e trial court to c u r e. The tr ial

co ur t could not go back to the guilt

– inn oce nce stage

—

it coul d only eit her gr ant Hallman ’ s motion for mistrial or deny it. 7 Second, I fail to see how any failure on the trial court ’ s part to properly familiarize itself wi t h the guilt

– innoc en c e p roceedings wo u ld have had any impact on the trial court ’ s abi lity to cure t he untimel y disc lo sure of the complained

- of evidence. The trial court could ha ve spent several days read ing the trial transcript and reviewing
every ex h i bit admitted, but tha t w ou l d not change t he fact that the trial court could not go back to t he guilt

– i nnocen ce stage. As such, the second Mosley factor is either

7 The majority seemingly recognizes that there was n o thing f or the trial court to cur e, not in g tha t “ a continuan ce to assess the evidence ’ s use wa s too late an d any subseq ue nt c ross

- examination of Kim usi ng th at impeachment evide nce would have been pointless. ”17

inapplic able or neutral to the determination of whether the trial court abused its discreti o n by denying Hallman ’ s m o ti o n for mistria l

. C. The Certainty of Conviction Absent the Miscon du ct The third Mosley factor

— the certainty of conviction ab sent the misconduct

— is measured by looking at the strength of the evidence supp orting the conviction. Archie , 221 S.W.3d at 70 0 ; M osley , 983 S. W .2d at 259. In holding that Hallman ’ s conviction w as not cer tain a bsent the un timely disclosure o f the complained

- of evidence , the majority describ es this appeal as a “ cla s sic he

- said, she

- said ” case and focuses on “ the cur i ou s timing of Rita ’ s and Amy ’ s delayed out cries, the filing of Kim ’ s M ay 2016 di vorce petition, in which Kim did not mention any alleged sexual abuse , and some of the discr epancies in her testimony

. ” Ho w ever, t he majority ’ s analysis largely ignores the strength o f the evidence

s uppo r ting Hallman ’ s conviction. And I would not describe t his as a “ cla s sic he

- said, she

- said ” case. Twelve witnesses testified during t he guilt

– innocence stage o f H allman ’ s trial

. Thus, I would describe this case as a “ she

- said, he

- said , h e
- said, she

said, she

- said, he

- said, she

- said, she

- said, sh e
- said, he

- said , he

- s aid, she

- said case. ” The majority does a fine job of ta king o n the herc ulean tas k of detailing the testi mony from these twel ve wit ne sses, and I will not b elabor the issue by once again deta i l ing all of their testi mony . I will, however, briefly su m ma r ize some of the pertinent testimony to assess the strength o f the evidence s upporting Hallman ’ s conviction.18

• Am y ’ s Testimony : Amy , who was eighteen at the time of trial , testif ied about being sex u ally assault ed by Hallman on numerous occasion s , a nd she gave detailed, sensory accounts of the sexual assault s. Sh e testifie d that when she was in the seventh or eighth grade, Hallman , Rita, and she had played a game called “ butt plug s ” where Hallman en d ed up pullin g down the girls ’ pants and puttin g h i s hand between their butt ocks

. She also testified that when sh e was “ [p ]robably a bout 12, ” Hallman had pul led down her school uniform and put his mouth on her vagina. Af ter Amy pu shed H allman ’ s head away , he pulled his p an t s down and inserted his pen is int o her va gina. Amy testi fied about occasion s “ in the comp uter room ” whe n Hallman had made her perform oral sex o n him and testified about occasions whe n Hallman would make her touch hi s peni s wh i l e he wa s “ looking at inappropriate thi ngs on his phone

. ” She also testified that when she had sta yed with Hallman at a hotel for a couple o f months when she was sixteen, she awoke to Hallman on top of her, “ trying to stick his penis into [her] v ag

i na. ” Amy test i fied that t he abuse occurred “ just about on a day

- t o
- day ba sis ” f rom 2012 through 2016 , and included finger

- to

- v a gina contact, mouth

- to

vagina contact , penis

- to

- vagina contact , hand

- to

- penis contact, mouth

- to

- p enis

c o n ta c t, ha nd

- to

- brea st contact, and mou t h

- to

- breast contact. Amy also testified that she had seen Hallman “ cree [p] ” into the bed room that she shared with Rita , saw him get into Rita ’ s bed, and saw his hands moving aroun d Rita

.19

• Ri t a ’ s Testimony : Rit a , who was t wenty at the time of trial , tes t ified that she had never witnessed Hallman touch Amy in a sexual man ner. R ita, however, testified that “ when me or my sister wanted something from [Hallman ], he w o ul d al wa ys . . . tell us to do thin gs . . . to him, or we had to le t him see one of our pri v ate parts if we wanted something like clothes or shoes or anything. ” Rita also testified that “ [a]t night time, [Hallman ] would come into [her] roo m, and h e w ould stick his hand in [he r pa nts] and play with [her ] vagina ”

— t estimony that largely mirrored Am y ’ s description of Hallman ’ s abuse of Rita.

• K im ’ s Testimony : Kim test ified that Hallman bought Amy and Rita lingerie and that she thought it wa s in a pprop riate. She also testified that Ha llman “ would ha ve [Amy] outside in the truck wi th him

. . . late a t night on school nights ” and tha t Amy would be wearing “ just her robe to get in the truck with him

. ” Kim also de scribe d how wh e n H allman and Amy spent the night at Hallm an ’ s sister ’ s hous e, Amy would sleep in the same room as Hallman. Kim testified that H allma n treated Amy “ more like his wife ” than his daugh ter. Kim also testified about an occas ion wh e n she c o nf

r onted Hallman with an allegation that he ha d asked Rita to rub Vaseline on his penis, an d Hallman told Kim that “ [h]e though t that his 12

- yea r o l d daughter [Rita] was actually [Kim ]

. ”

• T h eresa Fugate ’ s Testimony : T heresa F ugate, a sexual assa u lt nurse ex aminer who h ad conducted a sexual as sau lt exam on Amy and Rita, testified that Amy told20

her that Hallman had started sexuall y a bus ing her when s he was twelve years old and that the abuse included penis

- to

- vagina conta ct, fi nger

- to

- va g in a contact, mouth

- to

vagina co ntact, and hand

- to

- penis co ntact. Fugate also testified that Rita ha d told her about the inciden t whe n Hallman had asked Rita to rub V as eline on his penis

. Rita also relayed to Fuga te ins tances wh e n H allman had come into Rita ’ s room at night and touched h er vagina.

• S amantha Torrance ’ s Testimony : Samantha Torrance, who had cond ucted forensic interview s of Amy and R ita, testified that sh e did not have any concerns tha t Amy o r Rita had b e en coached

. To rrance testified that Amy had made an outcry of sexual abuse to her and that Amy disclosed peripheral and senso ry details to her. Torrance lik ewise testified that R ita ha d made an outcry of sexual abuse to her and th a t R ita had also disclo sed per ipheral and sensory details to her. Notably, Torrance testified t hat “ [i]t ’ s n ot very common that a k id gets sexually abused on e time and immediately tells. It ’ s more c ommon t hat they might kind of test the waters a l i ttle bit and s ee ho w people are going to react. They might deny it for a really long time at first

. . . . ”

• Detective Jonathan McKe e ’ s Testimony : Detective McKee, who was assigned to Hall man ’ s case follo wing R ita ’ s outcry, testif

ie d that “ c hi l dren decide to disc lose their abuse when they ’ re ready to talk about it. And a lot of times that ’ s no t right21

away. ” Detective McKee also testified that Amy had talked about being sexually abused in a hote l.
I n s um, the re is a sub s ta n tial am ount of evid ence from various witnesses , including the complainant s , tending to prove that Hallm an had sexually abused Amy

. This factor weighs heavily against Hallman. 8 See Archie , 221 S.W.3d at 7 00; Mo sley , 983 S.W.2d at 259. D. Summary o f th e Anal ys is under Mosley After apply

ing the Mosley factors, I have c oncluded that the first factor weighs
ag ainst Hallman, the second factor is either inapplicable or neutral, and the third factor weighs he avily against H a llman. As s uch, to the extent t ha t the Mo sley factors

are appropriate to address Hallman ’ s argument on appeal, I w ould hold that the trial

co urt did not abuse its discretion by denying Hallman ’ s motion for new trial, and I would overrule H allman ’ s sole po int of error

. See M osley , 983 S .W

. 2d at 2 59. I V
. A NALYSI S U NDER R ULE 44.2( b) As dis cussed abov e, I think that the correct way to analyze Hallman ’ s argument

on appeal is to ascertain whether the State ’ s violation of Article 39.14 (h) vi olated Hallman ’ s sub stantial rights

. See Tex. R. Ap p . P. 44 .2(b).

8 While the majority emphasi zes t h e “ curious timing of Rita ’ s a nd Amy ’ s de l ayed out cries , ” the record reflects th at ch ildren often delay o utcries of sexu al abuse and

“ test the waters a little bit and s ee how people are going to react. ”22

An err or that has a “substantial and injurious effect or influence in determining the jur y’s verdict” affects a substantial right. Haley v. State , 173 S.W.3d 510, 518 (Tex. Crim. App. 20 05); K

ing v. Sta te , 953 S.W.2d 266, 27 1 (Tex. Cri m . A pp. 1 99 7) (citing Kott eakos v

. United States , 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversel y, an error d oes not affect a substantial right if we have “fair assurance that the error did

not influe nce the ju ry, or had but a sligh t effect.” So l omon v. State , 49 S.W. 3d 356, 365 (Tex. Crim. App. 2001); Johnson v. State , 967 S.W.2d 410, 417 (Tex. Cri m. App. 1998)

. In deter mining the likelihood that a nonconstitutional error adversely affected th e jury ’s decisio n, we review the recor d as a whol e , i nclud in g any testimony or phys ical evidence admitted for the jury’s consideration, the nature of the evid ence supporting the verd ict, and the characte r of the alleged error and how it might be considered in

co nnection w

ith other evidence in the case. M ot i lla v

. State , 78 S.W.3 d 352, 3 55 (Tex. Crim. App. 2002). Be cause there is significant overlap between t he analysis of the Mosley factors and the harm analysis under Rule 44.2(b), I will not belabor the point b y repeat i ng what I said above

. I t suffic e s t o say t hat there is substan tial evidence tending to prove that Hallman sexually assaulted Amy

. M ost notably , there is testimony from Amy herself, who was eighteen at the time of trial , and who testi fied at length about being

sex ually assaul t ed by Hall m an on nu me rous occasions and gave d etailed, sensory

accounts of those assaults.23

If the complained

- of evidence h ad been timely produced, it would have had nothing more than a “ slight effect ” on the jury. See S olomon , 49 S.W.3 d at 365 ; Johnson , 967 S.W.2 d a t 417

. In this regard, much of the inf ormation contained in the complained

- of evidence wa s also contained in t he off ense report. See Wyatt

, 23 S.W.3d at 27 . Moreover, Hallman had other means to attack Kim ’ s credi bility

out side of the compl ained

- of ev i de n ce, i nc luding through Detec tive Roble s ’ s testimony an d through the information contained in th e offense r eport
. 9 Finally, t o the extent that there is any value to the complained

- of evidence, that value would be

on ly slight. The complained

- of evidence co u ld ha ve been used to do nothing more than att ack Kim ’ s credibility as to her testimon y about what occurred during th e August 10, 2014 incident; but t hat testimony does virtually nothing to assail the evidence relating to Hallm an ’ s s exual ass a ult of Amy , p a rticu la rly in light of Amy ’ s detailed testimo ny relating to Hal lm an ’ s abuse. In sum, I do not believe that the untimely disclosu re of th e complained

- of evidence affected Hall man ’ s substantial rights. See Tex. R. App. P. 44.2( b). A s such,

t o the exten t t h at Ru le 44.2(b) is appropriate to address Hal lman ’ s argument on appeal, I would hold that Hallman ’ s substantial rights were not affected , and I would overrule Hallman ’ s sole point of error. See id.

9 Moreover, Hallman and his counsel shou ld have b een aw a re o f Hallman ’ s handwritten statement an d the family

- viol ence packet because both were referenced in the offense re p ort.24 V. C ONCLUSION Because I w ould h old that t he trial c o ur t did no t abuse it s discretion by deny ing Hall man ’ s motion for mistrial and that Hallman ’ s substantial rights were not affected , I would affirm the trial court ’ s judgment. Because the majority holds otherwise, I respectfully d issent

. /s/ Dan a Woma ck Dana Wo mac k Just i ce Pub l i sh Deliv ered : June 16, 2022