In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-18-00434-CR

___________________________

On Appeal from Criminal District Court No. 1

Tarrant County, Texas

Trial Court No. 1548964R

Dissenting Opinion by Justice Womack

ROBERT F. HALLMAN, Appellant

V.

THE STATE OF TEXAS
2

DISSENTING OPINION ON REMAND

I. INTRODUCTION

The majority1 holds that the trial court abused its discretion by denying 

Appellant Robert F. Hallman’s motion for mistrial and that the resulting harm 

affected his substantial rights. Therefore, the majority reverses the trial court’s 

judgment and remands the case for a new trial.

The majority’s disposition stems from thirteen pages of undisclosed 

discovery—and in particular Hallman’s ex-wife’s (Kim’s) ten-line handwritten witness 

statement—from an extraneous incident that occurred over a year and a half before the 

initial outcry of sexual abuse in this case. This prior incident involved neither 

allegations of sexual abuse nor allegations of any kind against Hallman by the 

complainants (Rita and Amy) but instead involved Hallman’s physical assault of his 

ex-wife and son (Ron). Hallman claims that lack of access to this discovery in the 

guilt–innocence stage deprived him of the opportunity to fully develop his defensive 

theory that his ex-wife and the complainants were lying. Because (1) the offense 

1For 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 Walker, Justice Walker notes that he “cannot join the 

majority opinion,” although 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.”). Therefore, while there is a majority of the panel agreeing to the 

judgment, we may not have a “majority opinion.” See Unkart v. State, 400 S.W.3d 94, 

100 (Tex. Crim. App. 2013) (“An ‘opinion of the Court’ or ‘majority opinion’ is one 

that is joined by a majority of the judges participating in the case.”).
3

report from the extraneous incident—containing essentially the same information as 

the written statement—was timely disclosed, (2) Hallman was able to successfully 

impeach his ex-wife’s testimony through the investigating detective’s testimony on the 

same issue, and (3) the great weight of the evidence—which involved twelve guilt–

innocence stage witnesses over the course of an eight-day jury trial—supports the 

conviction, I would hold that the trial court did not abuse its discretion by denying the 

motion for mistrial and that Hallman’s substantial rights were not affected by the trial 

court’s denial of the motion for mistrial. Therefore, I respectfully dissent.

II. THE APPROPRIATE ANALYSIS: MOSLEY OR RULE 44.2(B)?

In granting the State’s petition for discretionary review, the Court of Criminal 

Appeals remanded this case to us “for further consideration and disposition 

consistent with Watkins [v. State, 619 S.W.3d 265 (Tex. Crim. App. 2021)].” Hallman v. 

State, 620 S.W.3d 931, 931–32 (Tex. Crim. App. 2021). As a preliminary matter, it is 

unclear how we should analyze Hallman’s appeal. In his supplemental brief, Hallman 

argues that we should apply the harm analysis under Texas Rule of Appellate 

Procedure 44.2(a), requiring reversal unless it can be determined beyond a reasonable 

doubt that the error did not contribute to his conviction. See Tex. R. App. P. 44.2(a). 

The State counters that the proper harm analysis here is under Texas Rule of 

Appellate Procedure 44.2(b), requiring error to be disregarded if it does not affect 

Hallman’s substantial rights. See Tex. R. App. P. 44.2(b). Alternatively, if the standard

for reviewing the denial of a motion for mistrial applies, the State argues that the
4

three-factor test in Mosley v. State applies. 983 S.W.2d 249, 259 (Tex. Crim. App. 

1998). The Mosley factors are: (1) the severity of the misconduct, (2) the measures

adopted to cure the misconduct, and (3) the certainty of conviction absent the 

misconduct. Id. After discussing these various analyses, the majority applies the 

Mosley test to evaluate whether the trial court abused its discretion by denying 

Hallman’s motion for mistrial.

However, it is not clear whether the use of the Mosley factors is appropriate for 

the issue raised in this appeal. The Mosley factors seem to be chiefly utilized in cases 

involving a motion for mistrial following improper argument by a prosecutor. See, e.g.,

Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007) (applying Mosley factors in 

case involving improper argument made by a prosecutor); Hawkins v. State, 

135 S.W.3d 72, 75–76 (Tex. Crim. App. 2004) (same); Mosley, 983 S.W.2d at 259 

(same); see also Garcia v. State, No. 10-12-00202-CR, 2013 WL 3482009, at *1 (Tex. 

App.—Waco July 11, 2013, pet. ref’d) (mem. op., not designated for publication) 

(“Because the Court of Criminal Appeals has not adopted the Mosley/Hawkins factors 

in evaluating the denial of a motion for mistrial pursuant to any reason other than 

improper argument . . . we do not use those factors in our review . . . .”). 

Indeed, when the Texas Court of Criminal Appeals established the Mosley

factors, it noted that the factors had previously been applied by federal courts when

addressing “improper argument cases.” Mosley, 983 S.W.2d at 259. Mosley itself was 

an improper argument case, which can be seen in Mosley’s recitation of the first 
5

factor: “severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s 

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

case like this one, where the motion for mistrial was raised in the punishment stage 

following the untimely disclosure of Article 39.14(h) evidence during that stage. And 

it is perhaps no wonder that they are not used, as Mosley’s second factor—the 

measures adopted to cure the misconduct—is entirely inapplicable here because the

complained-of evidence was not provided until the punishment stage, thus making 

any cure impossible.

Instead of utilizing the Mosley factors, the issue of whether the trial court 

abused its discretion by denying Hallman’s motion for mistrial is best addressed by 

determining whether the State’s violation of Article 39.14(h) affected Hallman’s 

substantial rights—essentially, a harm analysis 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 Sopko v. State, 637 S.W.3d 252 (Tex. App.—Fort Worth 2021, no 

pet.), where we held that a harm analysis under Rule 44.2(b) was necessary to address

a statutory violation of Article 39.14. This approach also squares with how some of 

our sister courts have addressed violations of Article 39.14. See Williamson v. State, 

No. 04-20-00268-CR, 2021 WL 4976326, at *3 (Tex. App.—San Antonio Oct. 27, 

2021, no pet.) (mem. op., not designated for publication) (“Violations of statutory 

duties under [A]rticle 39.14 of the Texas Code of Criminal Procedure warrant a harm 

analysis.”); Perkins v. State, No. 03-19-00356-CR, 2021 WL 2172547, at *3 (Tex. 
6

App.—Austin May 28, 2021, no pet.) (mem. op., not designated for publication)

(“Reviewing courts must conduct a harm analysis before determining whether reversal 

is proper for violation of [A]rticle 39.14.”).

This analysis is still consistent with Hawkins, where the Texas Court of Criminal 

Appeals cautioned that “[a] harm analysis is employed only when there is error, and 

ordinarily, error occurs only when the trial court makes a mistake” but also 

acknowledged that “whether a mistrial should have been granted involves most, if not 

all, of the same considerations that attend a harm analysis.” 135 S.W.3d at 76–77. 

And, applying a Rule 44.2(b) harm analysis cuts to the heart of the issue—the impact

of the State’s failure to timely disclose the complained-of thirteen pages—better than 

applying the Mosley factors.

2

 

While applying a Rule 44.2(b) harm analysis appears to be the appropriate 

method for analyzing Hallman’s issue on appeal, I will analyze the issue under both 

the Mosley factors and Rule 44.2(b). Regardless of which analysis is used, I conclude 

that the trial court did not abuse its discretion by denying Hallman’s motion for 

mistrial. 

2Rule 44.2(b) is not limited to addressing “errors”—the Rule expressly states, 

“Any other error, defect, irregularity, or variance that does not affect substantial rights 

must be disregarded.” Tex. R. App. P. 44.2(b).
7

III. ANALYSIS UNDER MOSLEY

As noted above, the majority applied the three Mosley factors to assess whether 

the trial court abused its discretion by denying Hallman’s motion for mistrial. I will 

address these factors in turn.

A. The Severity of the Misconduct

Prejudicial effect is the touchstone of the first Mosley factor. Hawkins, 

135 S.W.3d at 77; West v. State, No. 02-18-00109-CR, 2019 WL 3491937, at *2 (Tex. 

App.—Fort Worth Aug. 1, 2019, no pet.) (mem. op., not designated for publication). 

Thus, to analyze the severity of the misconduct present here, one must assess the 

prejudicial effect of the complained-of thirteen pages, which include the following: 

(1) Detective Robles’s affidavit, (2) Hallman’s handwritten statement, (3) Kim’s

handwritten statement, and (4) a family-violence packet. 

1. The Prejudicial Effect of Detective Robles’s Affidavit

Detective Robles’s affidavit is a one-page document in which he describes what 

occurred during the August 10, 2014 incident. As noted by the majority, “Detective 

Robles’s affidavit contained the same information as his offense report.” Indeed, 

Detective Robles’s affidavit is a near-verbatim repeat of the information contained in 

his offense report. Notably, the offense report was disclosed to Hallman during 

pretrial discovery. Thus, because the substance of the information contained in 

Detective Robles’s affidavit is the same as the substance of the information contained 

in the offense report, the untimely disclosure of Detective Robles’s affidavit had no 
8

prejudicial effect. See Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000) (holding 

that because information contained in undisclosed pathologist’s report was materially 

the same as information contained in witness’s testimony, there was “no reasonable 

probability that, had the [pathologist’s report] been disclosed to the defense, the 

outcome of the proceeding would have been different”).

2. The Prejudicial Effect of Hallman’s Handwritten Statement

Hallman’s handwritten statement is a one-page document in which he describes 

what occurred during the August 10, 2014 incident. In his statement, Hallman 

describes that he went to his neighbor’s house to wait on his sister to pick Amy and 

him up; that Kim followed Amy and him to the neighbor’s house; that Kim grabbed 

Amy and him; that Amy began having an asthma attack and said she could not 

breathe; that he pulled Kim off Amy; that Ron bit him; and that Ron was

unintentionally bumped in the process. The information contained in the offense 

report—which was disclosed to Hallman in pretrial discovery—contains materially the 

same information as that contained in Hallman’s handwritten statement. The offense 

report describes how Hallman told officers that he was going to his neighbor’s house

to call his sister to come and pick him up; that Amy wanted to leave with him and 

followed him; that Kim grabbed him and tried to get his phone out of his pocket; that 

Kim grabbed Amy; that Amy told Hallman that she could not breathe; that Hallman 

grabbed Kim to try and pull her away from Amy; that Ron bit him; and that he did 

not hit Ron unless it was by accident.
9

Because the substance of the information contained in Hallman’s handwritten 

statement is the same as the substance of the information contained in the offense 

report (neither of which mentions any allegation of sexual abuse), the untimely 

disclosure of Hallman’s handwritten statement had no prejudicial effect. See id. 

Moreover, there cannot be any prejudicial effect stemming from the untimely 

disclosure of Hallman’s handwritten statement because Hallman made the statement

and was thus aware of its contents.3 See Havard v. State, 800 S.W.2d 195, 204 (Tex. 

Crim. App. 1989) (“[A]ppellant knew of both the existence and the content of his 

statement, as a matter of simple logic, because he was there when it was made.”); see 

also Garcia v. State, No. 13-15-00527-CR, 2017 WL 3530926, at *3 (Tex. App.—Corpus 

Christi–Edinburg Aug. 17, 2017, no pet.) (mem. op., not designated for publication) 

(“[A]ppellant’s complaint relates to the disclosure of information already known to 

appellant—his own statement to law enforcement. The State has no affirmative duty 

to disclose information already known to a defendant.”).

3. The Prejudicial Effect of Kim’s Handwritten Statement

Kim’s handwritten statement is a one-page document containing approximately 

four sentences in which she describes what occurred during the August 10, 2014 

incident. In her statement, Kim describes Amy trying to leave with Hallman to go to 

3The offense report also mentioned that Hallman “was given his chance to 

write his statement,” which should have alerted Hallman and his counsel to the 

potential existence of Hallman’s handwritten statement.
10

his sister’s house to smoke marijuana; Kim refusing to let Amy go; Hallman telling 

Amy to run away; Kim going to the neighbor’s house and taking Amy by the arm and 

trying to pull her back; Hallman hitting Kim in the right arm and twisting her arms

behind her back; Ron biting Hallman; and Hallman hitting Ron in the face and 

stomach. 

Hallman takes issue with the untimely disclosure of Kim’s handwritten 

statement because while Kim testified that she had told police officers during the 

August 10, 2014 incident that she suspected Hallman of sexually abusing Amy, Kim’s 

handwritten statement does not mention sexual abuse. Hallman contends that he 

would have impeached Kim with her handwritten statement if it had been timely 

disclosed. And, according to the majority, “there was no better evidence with which 

to impeach Kim’s testimony about her sexual-abuse suspicions than her own written 

words.” I disagree.

The credibility of Kim’s statement that she had told police officers during the 

August 10, 2014 incident that she suspected Hallman of sexually abusing Amy was 

already called into 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 children was being sexually abused. Detective Robles further 

testified that 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. If Kim had mentioned any concerns about sexual abuse of her 
11

children, Detective Robles said that he “would have investigated further.” Detective 

Robles also testified that he had not been trained in how to interview children about 

sexual abuse and that it would not have been appropriate for him to “have gone over 

to any of the children involved in this case and start[ ] asking about where [Hallman] 

had touched them.”

Any gap between the potential value of attacking Kim’s credibility through her

handwritten statement and the value of attacking Kim’s credibility through Detective 

Robles’s testimony is minimal. If anything, Detective Robles’s testimony is better 

impeachment evidence than Kim’s handwritten statement because his testimony 

actually contradicts Kim’s testimony that she had told police officers about her 

suspicions of sexual abuse, while Kim’s handwritten statement is merely silent on the 

issue.4 Moreover, the information contained in Kim’s handwritten statement is 

substantially similar to the information contained in the offense report regarding what 

Kim told police officers on August 10, 2014. The information in the offense report—

which was disclosed during pretrial discovery—does not mention that Kim told police 

officers about her suspicion of Hallman’s sexual abuse. Hallman could have attacked 

4The majority states that “while Kim claimed at trial that on August 10, 2014, 

she had told the police that she suspected Hallman was sexually abusing Amy, her 

own written statement clearly demonstrates otherwise.” This conclusion goes too far. 

Just because Kim’s handwritten statement, which spans just a handful of sentences, 

does not mention her report of sexual abuse to police officers on August 10, 2014, 

that does not “clearly demonstrate” that she did not voice her suspicions to police.
12

Kim’s credibility with the offense report in almost exactly the same way that he could 

have attacked her credibility with her handwritten statement.

Finally, to the extent that Kim’s handwritten statement could have been 

valuable in attacking her credibility in ways that could not have been done through 

Detective Robles’s testimony or the disclosed offense report, that value is minimal

when understood in the context of the entire case. First, this extraneous incident 

occurred over a year and a half before the first outcry in this case. Second, it involved 

Hallman’s assaulting Kim and Ron, not his sexually assaulting the complainants.

5

 

Third, Kim is just one witness among many, and as I explain below, there is 

substantial evidence to support Hallman’s conviction. There is no rational

explanation for how Hallman’s potential cross-examination of Kim with her 

handwritten statement would be the proverbial “straw that broke the camel’s back.”

4. The Prejudicial Effect of the Family-Violence Packet

The family-violence packet contains a few pages of information relating to the 

August 10, 2014 incident and was filled out by Officer Oakley, one of the police 

5

Indeed, it was the credibility of the complainants that was emphasized by the 

State in its opening statement: “[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 you’re going to weigh whether or not you believe them.” The 

emphasis on the credibility of the complainants continued in closing argument when 

the State said, “These are the kinds of cases, these child sexual abuse cases comes 

down to do you believe them or not. . . . Today is the opportunity that you can tell 

them that despite what happened to them in 2010, 2011, 2012, 2013, ’14, ’15 and ’16,

that today, we believe you.” 
13

officers responding to the August 10, 2014 incident. Hallman complains about the 

untimely disclosure of the family-violence packet, arguing that he would have used the 

family-violence packet to attack Kim’s credibility during the guilt–innocence stage of 

the trial. 

Hallman points to two checklists in the family-violence packet, one titled 

“Condition of Victim Upon Officer Arrival” and the other titled “Description of 

Incident,” arguing that he would have attacked Kim’s credibility with the fact that 

Officer Oakley did not check the box for “Sexual Assault” on either checklist.

However, Kim’s credibility could not be effectively attacked through this evidence

because the checklist relating to the condition of the victim (i.e., the condition of Kim 

and Ron) would not capture any report of sexual assault against Amy, nor would the 

checklist relating to the description of the incident (i.e., the physical assault on 

August 10, 2014, not a prior sexual assault) capture a report of sexual assault.

Hallman also notes that the checklist titled “Description of Incident” contains 

boxes for “Threat of Retaliation” and “Threat of Physical Violence” and that those 

boxes were unchecked. Hallman argues that he would have attacked Kim’s credibility

with this evidence because Kim had testified that Hallman had once stated that he 

would “kill all of us” if he ever went to jail. Once again, this does not explain how 

Kim’s credibility would be effectively attacked through this evidence because that

checklist related to the description of the August 10, 2014 incident, which did not 

involve any threats of retaliation or threats of physical violence.
14

Hallman also points to a checklist titled “Demeanor on scene,” which contains 

a checked box for “Calm” to reflect the respective demeanors of Rita, Amy, and Kelly

(another daughter of Hallman’s) during the August 10, 2014 incident. Hallman argues 

that he would have used this evidence to attack Kim’s credibility because she had 

testified that Amy and Kelly had been upset during the August 10, 2014 incident.

Again, I do not see how Kim’s credibility would be effectively attacked through this 

evidence. The alleged discrepancy can be easily explained as the children being calm 

during one part of the incident and upset during another. This explanation gains 

credence because the offense report noted that Amy “got upset” when asked by 

police for further details of the incident. Moreover, any discrepancy between Kim’s 

testimony and the checklist regarding the children’s demeanor during the August 10, 

2014 incident does not undermine the substantial testimony detailing Hallman’s sexual

abuse of Amy.

And while I do not see how the timely disclosure of the family-violence packet 

would have any value in attacking Kim’s credibility, to the extent that it does contain 

some value, the offense report contains much of the same information as the familyviolence packet. Much like the family-violence packet, the offense report does not 

mention sexual abuse nor does it mention threats of physical violence. Hallman could 
15

have attacked Kim’s credibility with the offense report in much the same way that he 

could have attacked her credibility with the family-violence packet.6

5. Summary of the Prejudicial Effect of the Complained-Of Evidence

In sum, I do not think that the untimely disclosure of the complained-of 

evidence had a prejudicial effect on Hallman. See Hawkins, 135 S.W.3d at 77; West, 

2019 WL 3491937, at *2. Much of the information contained in the complained-of 

evidence was also contained in the timely-disclosed offense report. Hallman had 

other means to attack Kim’s credibility outside of the complained-of evidence—most

notably through Detective Robles’s testimony and the offense report—and any value 

that Hallman could have gained by using the complained-of evidence was de minimis. 

The first Mosley factor weighs against Hallman.

B. The Measures Adopted to Cure the Misconduct

The second Mosley factor—the measures adopted to cure the misconduct—

does not appear applicable here, and the parties evidently agree. In Hallman’s brief

on remand, he states, “The second factor, curative measures, is inapplicable since 

there were none. The evidence was not revealed until the damage was done and the 

verdict returned.” In the State’s brief on remand, the State notes, “[B]ecause the only 

relief requested was a motion for mistrial, which was denied by the trial court, 

consideration of the second factor—measures adopted to cure the misconduct—is 

6Notably, the offense report mentioned that “[t]he Family Violence Packet was 

completed.” That reference, like the one to Hallman’s statement, should have put

Hallman and his counsel on notice of the existence of the family-violence packet.
16

largely irrelevant. As such, the State will focus on the first and third factors of the 

Mosley test.”

Despite the parties’ lack of emphasis on the second Mosley factor, the majority

states that this factor “weigh[s] heavily in favor of a mistrial.” According to the 

majority, this is so because “nothing in the record before us reflects that the elected 

judge in this case took any steps to mitigate the harm from the belated disclosure or 

to familiarize herself with the guilt–innocence proceedings.” This reasoning fails for 

two reasons. First, because the complained-of evidence was not provided to Hallman 

until the punishment stage, there was nothing for the trial court to cure. The trial 

court could not go back to the guilt–innocence stage—it could only either grant 

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 with the guilt–innocence proceedings would have had any impact on 

the trial court’s ability to cure the untimely disclosure of the complained-of evidence. 

The trial court could have spent several days reading the trial transcript and reviewing 

every exhibit admitted, but that would not change the fact that the trial court could 

not go back to the guilt–innocence stage. As such, the second Mosley factor is either 

7The majority seemingly recognizes that there was nothing for the trial court to 

cure, noting that “a continuance to assess the evidence’s use was too late and any 

subsequent cross-examination of Kim using that impeachment evidence would have 

been pointless.”
17

inapplicable or neutral to the determination of whether the trial court abused its 

discretion by denying Hallman’s motion for mistrial.

C. The Certainty of Conviction Absent the Misconduct

The third Mosley factor—the certainty of conviction absent the misconduct—is 

measured by looking at the strength of the evidence supporting the conviction.

Archie, 221 S.W.3d at 700; Mosley, 983 S.W.2d at 259. In holding that Hallman’s 

conviction was not certain absent the untimely disclosure of the complained-of 

evidence, the majority describes this appeal as a “classic he-said, she-said” case and 

focuses on “the curious timing of Rita’s and Amy’s delayed outcries, the filing of 

Kim’s May 2016 divorce petition, in which Kim did not mention any alleged sexual 

abuse, and some of the discrepancies in her testimony.”

However, the majority’s analysis largely ignores the strength of the evidence 

supporting Hallman’s conviction. And I would not describe this as a “classic he-said, 

she-said” case. Twelve witnesses testified during the guilt–innocence stage of 

Hallman’s trial. Thus, I would describe this case as a “she-said, he-said, he-said, shesaid, she-said, he-said, she-said, she-said, she-said, he-said, he-said, she-said case.”

The majority does a fine job of taking on the herculean task of detailing the 

testimony from these twelve witnesses, and I will not belabor the issue by once again 

detailing all of their testimony. I will, however, briefly summarize some of the 

pertinent testimony to assess the strength of the evidence supporting Hallman’s 

conviction.
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• Amy’s Testimony: Amy, who was eighteen at the time of trial, testified about 

being sexually assaulted by Hallman on numerous occasions, and she gave detailed, 

sensory accounts of the sexual assaults. She testified that when she was in the seventh 

or eighth grade, Hallman, Rita, and she had played a game called “butt plugs” where 

Hallman ended up pulling down the girls’ pants and putting his hand between their 

buttocks. She also testified that when she was “[p]robably about 12,” Hallman had 

pulled down her school uniform and put his mouth on her vagina. After Amy pushed 

Hallman’s head away, he pulled his pants down and inserted his penis into her vagina. 

Amy testified about occasions “in the computer room” when Hallman had made her 

perform oral sex on him and testified about occasions when Hallman would make her 

touch his penis while he was “looking at inappropriate things on his phone.” She also 

testified that when she had stayed with Hallman at a hotel for a couple of months 

when she was sixteen, she awoke to Hallman on top of her, “trying to stick his penis 

into [her] vagina.” Amy testified that the abuse occurred “just about on a day-to-day 

basis” from 2012 through 2016, and included finger-to-vagina contact, mouth-tovagina contact, penis-to-vagina contact, hand-to-penis contact, mouth-to-penis 

contact, hand-to-breast contact, and mouth-to-breast contact. Amy also testified that 

she had seen Hallman “cree[p]” into the bedroom that she shared with Rita, saw him 

get into Rita’s bed, and saw his hands moving around Rita.
19

• Rita’s Testimony: Rita, who was twenty at the time of trial, testified that she 

had never witnessed Hallman touch Amy in a sexual manner. Rita, however, testified 

that “when me or my sister wanted something from [Hallman], he would

always . . . tell us to do things . . . to him, or we had to let him see one of our private 

parts if we wanted something like clothes or shoes or anything.” Rita also testified 

that “[a]t nighttime, [Hallman] would come into [her] room, and he would stick his 

hand in [her pants] and play with [her] vagina”—testimony that largely mirrored 

Amy’s description of Hallman’s abuse of Rita.

• Kim’s Testimony: Kim testified that Hallman bought Amy and Rita lingerie 

and that she thought it was inappropriate. She also testified that Hallman “would 

have [Amy] outside in the truck with him . . . late at night on school nights” and that 

Amy would be wearing “just her robe to get in the truck with him.” Kim also 

described how when Hallman and Amy spent the night at Hallman’s sister’s house, 

Amy would sleep in the same room as Hallman. Kim testified that Hallman treated 

Amy “more like his wife” than his daughter. Kim also testified about an occasion 

when she confronted Hallman with an allegation that he had asked Rita to rub 

Vaseline on his penis, and Hallman told Kim that “[h]e thought that his 12-year old 

daughter [Rita] was actually [Kim].”

• Theresa Fugate’s Testimony: Theresa Fugate, a sexual assault nurse examiner

who had conducted a sexual assault exam on Amy and Rita, testified that Amy told 
20

her that Hallman had started sexually abusing her when she was twelve years old and 

that the abuse included penis-to-vagina contact, finger-to-vagina contact, mouth-tovagina contact, and hand-to-penis contact. Fugate also testified that Rita had told her 

about the incident when Hallman had asked Rita to rub Vaseline on his penis. Rita 

also relayed to Fugate instances when Hallman had come into Rita’s room at night 

and touched her vagina. 

• Samantha Torrance’s Testimony: Samantha Torrance, who had conducted 

forensic interviews of Amy and Rita, testified that she did not have any concerns that 

Amy or Rita had been coached. Torrance testified that Amy had made an outcry of 

sexual abuse to her and that Amy disclosed peripheral and sensory details to her. 

Torrance likewise testified that Rita had made an outcry of sexual abuse to her and 

that Rita had also disclosed peripheral and sensory details to her. Notably, Torrance 

testified that “[i]t’s not very common that a kid gets sexually abused one time and 

immediately tells. It’s more common that they might kind of test the waters a little bit 

and see how people are going to react. They might deny it for a really long time at 

first . . . .”

• Detective Jonathan McKee’s Testimony: Detective McKee, who was assigned 

to Hallman’s case following Rita’s outcry, testified that “children decide to disclose 

their abuse when they’re ready to talk about it. And a lot of times that’s not right 
21

away.” Detective McKee also testified that Amy had talked about being sexually 

abused in a hotel. 

In sum, there is a substantial amount of evidence from various witnesses,

including the complainants, tending to prove that Hallman had sexually abused Amy. 

This factor weighs heavily against Hallman.8 See Archie, 221 S.W.3d at 700; Mosley, 

983 S.W.2d at 259. 

D. Summary of the Analysis under Mosley

After applying the Mosley factors, I have concluded that the first factor weighs 

against Hallman, the second factor is either inapplicable or neutral, and the third 

factor weighs heavily against Hallman. As such, to the extent that the Mosley factors 

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

court did not abuse its discretion by denying Hallman’s motion for new trial, and I 

would overrule Hallman’s sole point of error. See Mosley, 983 S.W.2d at 259.

IV. ANALYSIS UNDER RULE 44.2(b)

As discussed above, 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) violated 

Hallman’s substantial rights. See Tex. R. App. P. 44.2(b). 

8While the majority emphasizes the “curious timing of Rita’s and Amy’s delayed 

outcries,” the record reflects that children often delay outcries of sexual abuse and

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

An error that has a “substantial and injurious effect or influence in determining 

the jury’s verdict” affects a substantial right. Haley v. State, 173 S.W.3d 510, 518 (Tex. 

Crim. App. 2005); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing 

Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, 

an error does not affect a substantial right if we have “fair assurance that the error did 

not influence the jury, or had but a slight effect.” Solomon v. State, 49 S.W.3d 356, 365 

(Tex. Crim. App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). 

In determining the likelihood that a nonconstitutional error adversely affected the 

jury’s decision, we review the record as a whole, including any testimony or physical 

evidence admitted for the jury’s consideration, the nature of the evidence supporting

the verdict, and the character of the alleged error and how it might be considered in 

connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. 

Crim. App. 2002). 

Because there is significant overlap between the analysis of the Mosley factors 

and the harm analysis under Rule 44.2(b), I will not belabor the point by repeating 

what I said above. It suffices to say that there is substantial evidence tending to prove 

that Hallman sexually assaulted Amy. Most notably, there is testimony from Amy 

herself, who was eighteen at the time of trial, and who testified at length about being 

sexually assaulted by Hallman on numerous occasions and gave detailed, sensory 

accounts of those assaults. 
23

If the complained-of evidence had been timely produced, it would have had 

nothing more than a “slight effect” on the jury. See Solomon, 49 S.W.3d at 365; Johnson, 

967 S.W.2d at 417. In this regard, much of the information contained in the 

complained-of evidence was also contained in the offense report. See Wyatt,

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

outside of the complained-of evidence, including through Detective Robles’s 

testimony and through the information contained in the offense report.

9

 Finally, to 

the extent that there is any value to the complained-of evidence, that value would be 

only slight. The complained-of evidence could have been used to do nothing more 

than attack Kim’s credibility as to her testimony about what occurred during the 

August 10, 2014 incident; but that testimony does virtually nothing to assail the 

evidence relating to Hallman’s sexual assault of Amy, particularly in light of Amy’s 

detailed testimony relating to Hallman’s abuse.

In sum, I do not believe that the untimely disclosure of the complained-of 

evidence affected Hallman’s substantial rights. See Tex. R. App. P. 44.2(b). As such,

to the extent that Rule 44.2(b) is appropriate to address Hallman’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.

9Moreover, Hallman and his counsel should have been aware of Hallman’s 

handwritten statement and the family-violence packet because both were referenced 

in the offense report.
24

V. CONCLUSION

Because I would hold that the trial court did not abuse its discretion by denying 

Hallman’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 dissent.

/s/ Dana Womack

Dana Womack

Justice

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Delivered: June 16, 2022