### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 17
- 00713
- CR

Victor Noe Cortes
- Puga, Appellant

v. The State of Texas, Appellee

FROM THE 27TH DISTRI CT COURT OF BELL COU NTY NO. 74974, THE HONOR ABLE JOHN GAUNTT, JU DGE PRESIDING

M E M O R A N D U M O P I N I O N
A jury found appellant Victor Noe Cortes

- Pug a guilty of aggravated sexual assault of a child under the age of six for sexual ly assault ing his girlfriend’s five

- year - old daughter

. See Tex. Penal Code § 22.021(a)(1)(B), (2 )(B), (f )(1). Appel lant elected to have the trial court decide his punishment, see Tex. Code Crim. Proc. art. 37.07, § (2)(b), and the trial judge sentenced him to serve thirty years in the Texas Department of Criminal Justice, see Tex. Penal Code § 22.02 1(e), (f )(1). On ap peal, appellant complains about the trial court ’ s admission of certain portions of the testimony of a police detective and of a CPS investigator . We affirm the trial court’s judgment of conviction.

BACKGR OUND The evidence a t trial showed th at Jessica met and began dating appellant when she lived in Austin , Texas

. Appellant moved in with Jessica and her three children, includ ing her2

youngest daughter J.G. 1 The couple then moved to Mexic o with the children , and Jessica be came pregnant with a ppellant ’s child. Jessica and the children returned to the United States when she was pregnant

. A t that time, a ppellant remained in Mexico. A few years later , t he

co uple decide d to reunite, and appellant returne d to the Uni ted States in July of 2015

. A fter he returned, Jessica , her four children, a nd appellant lived with J e ssica ’ s mother , brot her , and sister in Harker Heights, Texas

.

One night about six weeks after appellant had returned, Jessica was sleeping in her bed with the children. She had the children in bed with her because appellant wa s suppos ed to be out of town wor king. She awoke when she hea rd five

- year - old J.G. crying. Thinking her daughter was having a bad dream, Jessica pulled J.G. close to comfort her. She realized that J.G.

was na ked fr o m the waist down. W o ndering why her daughter did not have he r shorts or panties

on , s he asked J.G. if she had “ we nt potty on herself. ” J.G. said no and told her mother that “he took them off of me” and continued crying. Jessica got up and turned on the bedroom light. Her other children were still on the bed sleeping. A ppellant was lyi ng on the floor n ext to the b ed covered w ith a blanket from the bed. J.G.’s shorts and panties were on the floor next to him. Jessica sent J.G. to the bathroom. She followed and asked her daughter what had happened. J.G. told her mothe r that “he put hi s weenie on my co okie.” Jess ica knew tha t her daughter called a “penis” a “weenie” and a “vagina” a “cookie.” So, she knew that her daughter meant that appellant had put his penis on her vagina. Jessica woke up her mother to take care o f the other child ren and took J.G. to the poli ce station to report the incident

. After wards , she took her daughter to the children’s hospital for an exam.

1 To protect the identities of the child victims in this case, we refe r to the children using only their initials and refer to related adults by their first name s . See Te x. R. App. P. 9.10(a)( 3).3 At the hospital, a sexu al assault nurse examiner (SANE) conducted a sexual

assault exam on J.G. D u ring the history portion of the e xam, J.G. to ld the nurse , “I was sleeping. My dad got me around him. He told me to get on him. He brou ght me on him.” She then explained that “ he touched [h er]” with his “front butt” and pointed to the genital area on a body diagram of a girl to show w here he touc hed her . J.G. told the nurse that she also called the “front butt” “his wien e r” and that she called the genital area her “cookie.” T h e S ANE testified that J.G

. t hen said , “My dad touched my cookie with his wiene r . ” When she asked J. G

. if her dad touched her on the outside or inside o f her clo thes , J.G. said, “ Inside on my skin. M y dad took off my clothes

. I did not pee on myself. ” J .G. identified her dad as “Noe” (appellant).

During the genital exam, the SANE noted injur ies to J.G.’s sex ual organ: rednes s on both sides of the labia majora and red, irritated skin on the inner aspec ts of the labia majora (the l abial creases on both sides) at both the top and bottom

. The nurse explained that the redness and irritation could be caused by an irritant, s uch as u rine, or by rubbing. While the

nu rse could give no definitive cause for the injuries to J.G.’s sexual organ , she testified tha t the injuries were consistent with J.G.’s description o f the sexual assault . A copy of the SANE report of J

. G .’s sexual

- assault exam was admitted at trial withou t objection.

The jury also heard evidence that w hen Jessica took J.G. to the hospital, her sister , Brenda , who wa s li ving with Jess ica, called their other sister, Victoria, wh o lived next door to Jes sica’s mother with h er hu sband and daughter, to tell h er that appellant had hurt one of the children. At that time , the nature of the injury was no t discussed. Victoria lea r ned h ow appellant had injured J.G. in a later phone conversation with Brenda . At that point, Victori a fel t compelled to ask her nine

- y ear - old daughter, N.C., if anybody had ever hurt her or done anything to her that she did not want them to do. N.C. initially denied that anything had happened to her. Bo th4

Victoria and her husband , h owever, felt that N. C. wa s not telling the truth

. Vic toria explained to her daughter that she was not in trouble and that she needed to be honest a bout whether anything had happened. N.C. eventually disclosed to her mother t hat when she was at her grandm other’s house playin g out side with her cousins, she we nt inside to get a drink , and appellant pulled her into the children’s bedroom, pulled off her shorts and underwear, threw her on the bed, covered her mouth with his hand , a nd “put his penis right next to her vagina .” Vict oria testified that her daughter s howed her where appellant put his penis by pointing to the crease where her thigh met her gen ital area.

At trial, N.C. described the incident that she told her mother abo ut , saying that appellant put his “thing”

— which, s he e xplained , is the part of a boy ’s body that he pees with

— on the upper inside of her thigh. In court, s he demonstrated where appellant ’ s “ thing ” touched her by pointing to the top part of her thigh at the crease. N.C. testified tha t appellant d id not touch h er p rivate with his “ thing ” but said that it was “really close” to her private. Her testimony indicated that this in cide nt happened after appellant had returned from Mexico in July on the Sunday before school started. N.C. expl ain ed that sh e did not te ll a nyon e what appellant had done because he had threat en ed to hurt her parents.

A few days after N.C. told her mother wh at appellant had done to her , N.C. agreed to talk to the police. Victoria reported the incident to the police and took h er daught er fo r

a sexual

- a ssault exam at the children ’s advocacy center. N.C. told the SANE that when she went inside her grandmother’ s house to get juice, appellant grabbed her by her arm, threw her on the bed in the children’s room, pulled do wn her unde rwear an d pant s, “ popped it [out] and put it on [her ]

. ” N.C. point ed to the penis on a body diagram of a boy to show what “ it ” was . She explained that appellant touched her “ on the inside [of her clothes ] on [ h er ] skin ” with his private5

part, which she called a “wien er.” T he nurse noted no injuries to N.C. d uring the exam . A copy of the SANE report of N.C.’ s sexual

- assault exam was a dmitted at trial without objection.

The evidence at trial also showed that b oth girl s were take n, on separate day s, to the c hildren ’ s a dvocacy c enter for forensic interviews. The gir ls were interviewed by different forensic in terviewers, who both testif ied at trial. The video recordings of the forensic interviews were admitted at trial without obj ection. Also admi tted without objection were: an anatomical drawing of a girl wh ere J.G. had circled the sexual organ to indicate the part of her body that

a p pellant “ had hurt, ” an anatomical drawing of a girl with a line drawn on it to ind icat e where N.C . had said that appellant had “put his thing,” and a pic ture drawn by N.C. during her forensic interview to show what the “thing” looked like and to indicate w hich part of it touched her body.

Appellant was charged by indictme nt w ith aggravated sexual as sault of a child younger than six years of age for the incident involving J.G. 2 See Tex. Pena l Code § 22.021(a)(1)(B)(iii) (defining aggravated sexual assaul t of child as intentionally or knowingly causing sexual organ of child to contact sexual organ of another person, including actor). The Stat e called thirteen witnesses at trial: three police detectives, two who testified about interviewing appellant and o ne who testified about the pseudonym assigned to J.G.; the sexual

ass ault nurse examiner, who tes tified about the exams she performed on bot h girls; Jessica, who testified about J.G.’s outcry ; Victoria, who testified about N.C.’s outcry; two forensic scie n tists from the DPS crime lab, who testified about the forensic testin g co nducted in this case; 3 a n

2 The re cord reflects that appellant was in dicted in a separate case for the sexual assault he allegedly perpetrated agains t N.C.

3 Their testimony indicat ed th at no semen was detected on clot hing items belonging to J.G. or the swabs obtained from J .G. during th e sexual

- assault exam and that the only DNA present on the tested clothing items and sexual

- assault swabs was contr ibuted by J.G

.6

investigator from Child Protective Servic es, who testified about the CPS investigation of th e sexual

- abuse allegation involving J.G.; and J.G. and N.C., who described the sexual assault s that appellant had perpetrated against them . The defense called no witnesses.

The jury found appellant guilty of aggravated sexual assault of a child under th e age of six as charged in the indictment. T he trial court orde r ed a pre

- sentence investigation and reset the case for sentencing. A t th e punishment hearing, no further evidence was pr esented. The trial court sentenced appellant to serve thirty years in prison

. T his appeal followed.

DISCUSSION Appellant raises t w o points of error challe nging the trial court’s evidentiary rulings. F ir st , he contends that the trial court erred by admitting a police detective ’ s testimony about the “indicators of deception” that appellant exhibited when he was interviewed because th e
t estimony was inadmissible exp ert testimony on cre dibility

. S econd , app ellant assert s that the trial court erred in admitting the CPS investigator ’ s testimony about J.G.’s forensic interview because it was indirect hearsay.

Standard of Review

We revi e w a trial court’s decisio n to a d mit or exclude evidence for an abuse of d iscretion. Rhomer v. St ate , 569 S.W.3d 664, 669 (Tex. Crim. App. 2019); Henley v. State , 493 S.W.3d 77, 82

– 83 (Tex. Crim. App. 2016). An abuse of discretion does not occur unless t h e trial court acts “arbit rari ly or unreasonably” or “without reference to any guidi ng rules and
p rinciples.” State v. Hill , 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery

v. State , 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)); accord Rhome r , 569 S.W.3d at 669.
Fur ther , we m ay not reverse the trial court’s rulin g unless t he determinati on “falls outside the7

zone of reasonable disagreement.” Johnson v. State , 490 S.W.3d 895, 908 (Tex. Crim. App. 2016); see Henley , 493 S.W.3d at 83 (“Before a reviewing court may rever se t he tri al court's decision, ‘it must find the trial cou rt ’ s ruling wa s so clearly wrong as to lie outside the zone within which reasonable people might disagree.’” (quoting Taylor v. State , 268 S.W.3d 571, 579 (Tex. Crim. App. 2 008))). An evidentiary r ulin g will be upheld if it is correct on any the ory of law applicable to the case. Henley , 493 S.W.3d at 93; De La Paz v. State , 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
Testimony of Detective

At trial, Jeff Waggoner, a det e ctive with the Harker Hei ghts P oli ce Department , testified about the poli ce intervi ew with appell ant. He e xplained that , because he did not speak Spanish and appellant spoke only Spanish , Daniel DeLeon, the only Spanish

- speaking detective in the departme n t, inte rv ie wed appellant. Detective Waggoner was present dur ing the inte rview.

After establish ing that appellant had been given the appropriate constitutional warnings before the questioning started, see Miranda v. Arizona , 384 U.S. 436, 478

– 79 (1966) , the prosecutor asked D etective Waggoner about his training on recognizi ng d ec eption:
Q Now have you as a detective had training on how to r ecognize signs of deception?
A I have. Q All right. Tell me about that training. What type of training have yo u had?
A Over my training and period at the police department

—8

At that poi nt , appellant objected , complaining that “s igns of dec eption ” was “ wholly speculative.” The trial court asked appellant to “reph rase [ his ] objection,” and appellant stated, “My ob j ection is that it calls for speculation on the part of the witness and, bas ic ally, it’s seeking
t o try and make the witness, basi cally, a hum an lie detector.” The court ruled that it would allow the ques tion about training. The prosecutor repeated the q u estion , and the detective explained that he had acquired 400 hours of training involving kinesiol ogy and nonverbal communication

. In r esponse to follow

- up questions , he defined the concepts of “kinesiol ogy” and “nonverbal communication.” 4

The prosecuto r then asked Detective Waggoner about how detectives “ use this typ e of training to detect deceptio n . ” T he detective answered , “ Well, mo st people don’t tell us the truth right off the ba t. ” A ppellant objected, asserting that “we are basically using this

s u pposedly as a human lie de tector.” The trial court overruled the objection. The prosecutor
prom p te d the detective to continue, and th e detective explained:
So with individuals not telling us the t ruth most of the time, as far as being a detective, the b ody reacts in typical ways . Not everybody is the same, but there ’s a lot of things that a body w i ll do. Like I said, large pupil dila tion, rapid breathing, nonverbal shaking of heads, yes but sayin g no at the same time.
The prosecutor then asked if “ de t ectives use this type of t raining when doing an interview of a

su spect ,” and Detective Waggoner c o nf irmed that they do. Turning to ap pellant’s interview, the prosecutor asked Detective Waggoner,

4 The detective t estifi ed that kinesiolo gy is “ the study of nonverbal body language. The body reacts

— It ’ s stuff you can ’ t c ontrol: Heart rate, breathing, pupi l dilation, sexual drive, stuff like that is all controlled by the atomic [sic] nervous system which means you can ’ t do anything about it, it just happens. ” He explained t hat “ ‘ Nonverba l ’ is basically the stuff that you use wi thout your words. Grandiose hand g estures for trying to get a point across. Trying to convince somebody that you ’ ve not done something or tha t you ’ re [sic] without using words. ”9

“[ W] hat type of indications of deception did you see durin g the interview with the de fendant? ” Appellant object ed, assertin g the “same reasons.” The trial co urt overruled the objection.
Detec tive Waggoner then testified about the indicators of deception t hat he saw appellant exhibit , which included “us [ing] la r ge o pen - hand gestures trying to conve y that he was innocent of doing anything ” “ when talking abou t the incident itself, ” “ extreme pupil dilation , ” and “ [c] hanges in pitch and voice tone. ” After the detective testified about his observations , t he prosecut o r changed the topic of inquiry, questioning Detective Waggoner about the content of the i nterview

— that is, appe llant ’ s stateme n t s

— as relayed to him b y Detective DeLeon.

In his first point of error, appellant contends that the trial court abused i ts disc r etion by allowing the prosecutor to elicit testimony from Detective Waggoner about the “indicators of deception ” that appellant exhibit ed du ring the police interview because it was inadmissible expert testimony on credibility.

As a prerequisite to pres e nting a complaint for appellate review, the record must show that the complaint was ma de to the trial court by a timely request, objec tion, or motio n. Tex. R. App. P. 33.1 (a)(1). To be timely, an objection must be made at the earliest opportunit y or as s oon as the grounds for the objection become apparent. See Yazdchi v. State , 428 S.W.3 d 831, 844 (Tex. Crim. A pp. 2014); Pena v. State , 353 S.W.3d 7 97, 807 (Tex. Crim. App. 2011). In other words, the objection should be made “as soon as the [obje cting pa r ty] knows or should know that an error has occurred.” Lackey v. State , 364 S.W.3d 837 , 843 (Tex. Crim. App. 2 012); Hollins v. State , 805 S .W.2d 475 , 476 (Tex. Crim. App. 1 991). I f a defendant fails to object until after a n objectionable question has bee n asked and answered, and he can show no legitimate reason to justify the delay, his ob jection is untimely, and any claim of error is10

f orfei ted. Lun a v. State , 268 S.W.3d 5 94, 604 (Tex. Crim. App. 2008); Lagrone v. State , 9 42 S.W.2d 602, 618 (Tex. Crim. A p p. 1997).

Here, the earliest possible opportunity for appellant to have objected to evidence relating to signs or indicators of dece ption that app ellant exhibited during the interview was when the prosecutor asked Detective Waggoner if he had training o n “how to reco gnize signs of deception ” after establishing that the detective had parti cipated in appellant’s interview. Appellant did not object. The detective answere d t he question, confirming that he had such training, and the prosecutor then propound e d the next question, ask ing the detective to describe his training . Only when Detecti ve Waggoner began to answer that follow

- up quest ion d id appellant interrupt to object. Similarly, when the prosecutor later asked Detective Waggoner how detectives “use this type of training to detect deception,” appellant waited to object until after the detective answered that “most people don’t tell us t he truth right off the bat.” Onl y when the prosecutor subsequentl y asked the detective about the “indications of de c eption” that he saw appellant exhibit during the interview did appellant timely object

. Thus, while appellant complains that Detectiv e Wag goner testi fied “at length over [ appellant ] ’s repeated objections to nonverbal indicators of deception that persons m ay disp lay and then explained how [appe llant] had displayed several indicators of dece ption during his interrogation , ” only the latter
t est imony

— about the indicators of dec eption that the detective saw appellant exhibit during the interview

— was ti mely obj e cted to.

However , to preserve a com plaint for appellate review, the point of error r aised on appeal must comport with the objection made at trial , or error is not preserve d. Thomas v. State , 505 S.W.3d 916, 924 (Tex. Crim. App. 2016); Bekendam v. State , 441 S.W.3d 29 5, 300 (Tex. Crim. App. 2014). T he record here demonstrates that the ba sis of appellant’s objection to the11

detective’s t estim ony about the sig n s or indicators of deception was speculation

. Appellant’s initial objection asserted that the te s timony “call[e d] for speculation” and sough t to “make the witness . . . a human lie de tector.” At that time, appellant did not argue t hat t he testimony should be excluded b ecause it constituted inadmissible expert testimony about credibility. Nor did he raise any such argument in his later object ions, which both related back to his initia l objection based on speculation. The second obj ectio n simply asserted again that “we are basically using this supposedly as a human lie detector” using the same langua g e used in his speculation objection. The t hird objection merely asserted that he obje cted for the “ same reasons.”

T he ground for app ellan t’s complaint ab out inadmissible expert testimony

— that the detective’s testimony about the signs of deception appel l ant exhibited during the interview

was inadmissible expert testimony on credibility

— wa s or should have been apparent wh en the prosecuto r ask ed Detective Waggoner whether he had training on recognizing signs of deception when discussing appellant ’ s intervi e w . B ut appellant did not object on that ground

. Instead, he only complained that the testimony called for specula tion.

App ellant co ntends that his use of t he phrase “human lie detector” invoked Yount v. State , in which the Court of Criminal Appeals he l d that “Rule 702 does not permit an expert to give an opinion that the complainant or class of persons to which the complainan t belongs is truthfu l.” 872 S.W. 2d 706, 712 (Tex. Crim. App. 1993). He notes that in explaining its reasoning, the c ourt observ e d that “[e]xperts on child sexual abuse are not human lie detectors.” Id. at 710 (quo ting John E.B. Meyers , et al

. , E xpert Test imony in Child Sexua l Abuse Litig ation , 68 Neb. L. Rev. 1, 121 (1989)). Appellant mainta i n s that his use of the phrase “human l ie detector” sufficed to present his complaint about inadmissible expert testimony on credibility to the trial court and preserve it for appellate review.12 We ag ree that no “ magic words ” or citation to specific statutes or rules are required to preserve a complaint for appeal

. Ex parte Marascio , 471 S.W.3d 832, 842 (Tex. Crim. App. 2015) ; Pena , 353 S.W.3d a t 807

. However, w hile i t is tr u e that courts “ have long eschewed hyper

- technical r equirements for error preservation ” and that one “ need not employ ‘ s pecific words or technical considerations ’ to avoid forfeiting their complaints ,” Vasq uez v. State , 483 S.W.3d 550, 554 (Tex. Cr i m. App. 2016) , the objecting party must “let the trial cour t know what he wants and why he feels himself entitled to it clearl y enough for the judge to understand him. ” Id. A party must convey the substance of t he complaint to the trial court clearly en o ugh to p rovide the judge and the opposing party an opportun ity to address and, if necessary, correct the purported error. Mar a scio , 471 S.W.3d at 842 ; Pena , 353 S.W.3d at 807. “ [A] general or imprecise objection will not preserve error for appeal unless ‘the le g al basis for the objection is obvious to the court and to opposing counsel.’” Vasquez , 483 S.W.3d at 554 (quoting Buc h anan v. State , 207 S.W.3d 772, 775 (Tex. Crim. App. 2006)) (emphasis in original). We are not persuaded that it was obvious fro m appell a nt ’s use of the phrase “ human li e detector ” that a ppellant was complaining that Detective Waggoner’s testimony about t h e indicator s of deception that appellant exhibited during the interv iew wa s inadmissib le because it

wa s expert testimony on cred i bility. W hile appellant used the phrase “human lie d etector ” in his objection, he did so in connection with asserting that th e testimony called for speculation.

Nevertheless, even assuming that appellant’s use of the p hrase “human lie detector” can be construe d as ra i sing a c omplaint that the detective ’ s testimony was inadmissible expert testimony on credibility, a nd assuming a rguendo that this evidence was inadmissible for that reason and , thus, that the tr ial court abused its discretion in admitting the testi mony , we conclude that the error is harmless.13 The erroneous admissi on of evidence is non

- const it utional error. Gonzalez

v. State , 544 S.W.3d 363, 373 (Tex. Crim. A pp. 2018); Barsha w v. State , 342 S.W.3d 91, 93 (Tex

. Crim. App. 2011 ); Casey v. State , 215 S.W.3d 870, 885 (Tex. Crim. App. 2007).
Non

- constitutional error re quires reversal only if it af fects the substantial rights of the accused.
See Tex. R. App. P. 44 .2(b); Gonzalez , 544 S.W.3d at 373 ; Barshaw , 342 S. W .3d at 93. “A s ubstantial right is affected when the error h ad a substantial and injurious effect or influ ence in determining the jur y’ s verdict.” Thomas , 505 S.W.3d at 926 (quoting King v. State , 953 S .W.2d 266, 271 (T ex. Crim. App. 1997)) ; see Gonzale z , 544 S.W.3d at 373 . We will not overturn a criminal convict ion for non

- constitutional error if, after exa mining the record as a whol e, we have fair assurance the error did not influence the jury or infl uenced the jury o nly slightly. Gonzalez , 544 S.W.3 d at 373; Barshaw , 342 S.W.3d at 93.

In assessing potential harm, our focus is not on whether the outcome of the trial was proper des pi te the error but on whether the error had a substantial or injurious effect or influe nce on the jury’s verdict. Barsha w , 342 S.W.3d at 93

– 94; Sandoval v. State , 409 S.W.3d 259, 287

– 88 (Tex. App.

— Austin 2013, no pet.). We review the en tire record to

asc er tain the effect or influence on the verdict of the wrongfully admitted eviden ce. Bar shaw , 342 S.W.3d at 93; see Coble v. State , 330 S.W.3d 253, 280 (Tex. Crim. App. 2010) (in conducting harm analysis “we examine the entire trial record and calculate, as m uch as possibl e, the probable impact of the error upon the rest of the evidence”). I n making this determinatio n, we consider: (1) the character of the alleged er r or and how it might be considered in connection with other ev idence; (2) the nature of the e vidence support ing the verdict; (3) the existence and degree of additional evidence in dicating guilt; and (4) wh ether the State emphasized the14

com plained of error. Gonzalez , 544 S.W.3d at 373; Barshaw , 342 S.W.3d at 94; Moti lla v. State , 78 S.W.3d 352, 3 5 6

– 58 (Tex. Crim . App. 2002).

Here, Detective Waggoner testified only very briefly ab out the signs of deception that appellant exhibited during t he interview . Th e entirety of the testimony relating to the detective’s traini ng on recognizing deception as well as his tes timony about the signs of deception that appellant exhibited during the interview was elicited in less than four pages of the State ’s twenty

- four

- pa g e direct examination of the detective. Significantly, the St ate did not emphasize the dete c tive’s testimon y about the behavior that he observed beyond introducing it. The State did not mention Detective Waggoner’s testimony about appell ant ’ s behavior indicating deception at all during the rest of trial, and the prosecutors did not m ention it d u ring closing argument. Alth ough the State did discuss appellant’s inter view during it s closing argument, the prosecutor did not mention the detec tive’s testimony about appella n t’s behavior during the interview or the signs of deception that he alle gedly e xhibited. Instead, the Stat e discussed the content of appellant’s state ments, emphasi z ing that appellant’s story, presented in the reco r ding of t he interview, “ [did ] n ’ t m a ke a lot of sense” and fail ed to explain why J.G. was naked from the waist down whe n J e ssica aw oke to find her cry ing

.

Concerning the nature of the eviden ce supporting the verdict, the jury considered evidence that on the night of the offense, immediately af t er the incident, Jessica awoke to her five

- year - old daughter crying and disc ov e red that J.G. was naked from t he waist down . When
Jes sica asked questio ns to discern what was going on, J.G. denied that she had had an accident

— and the evidence reflected tha t there was no w et spot on the bed

— and told her mother that
appe llant had “put h is weenie on [her] cookie. ” The jury also heard details about the incident from J.G. during her testimony, and she provid ed specific facts about when the incident15

happened, whe r e it happened, what she was doing, what appellant did, how appell ant touched h er, and how she fel t.

As for additional evidence indicating guilt, the sexual assaul t nurse examiner testified about the details of the incident that J.G. recou n ted to her during the sexual

- assault

exam , and th e record reflects that th ose details were c o nsistent with J.G. ’ s outcry to h er mother and her testimony at trial

. Further, the results of the sexual

- assault exam corroborated J.G.’s account of the sexual a s sault. The nurse described injuries to J.G.’s sexual organ that were consistent with the se x ual assault J.G. recounte d. The jury also heard evidence that appellan t attempted to perpetrate similar conduct, during the same t ime frame, with J.G.’s nine

- yea r - old cousin, N.C. Both girls , in separate interviews, gave similar descriptions of appellan t putting his “wiener” on or near their sexual orga n, touc hing them unde r their clothes on their skin, and the evidence demonstrated that the girls had not spoken to each other about a ppellant’s conduct before giving their separate accounts of appellant’s s exual assaults against them.

On this rec ord, we conclude that the a dmission of the challenged portions of the detective’s testimony about appellant exhibiting signs of d e ception during his interview

— if it was error and was properly preserved for appel lat e review

— did not influence the jury or had bu t a sli ght effect. Thus , because it did not affect appellant’s substantial rights, it was har mless. We overrule appellant’s first point o f error.
Testimony of CPS Investigato r Shelby Foster, an investiga tor with Child Protective Services, testified at trial about the investi gat ion of the sexual

- abuse allegation against appellant that she condu cted on behalf of the Texas Department of Fa m ily and Protective Services. She indicated that, as part of16

that inv est igation, she observed the forensic interview of J.G. at the c hildren’ s a dvocacy c enter. The prosecutor asked Foster, “Without telling us w hat her words were, does [J.G.] make some ty p e of outcry of sexual abuse involving

— .” Appellant inter rupted the q ues tion to object, complaining that “[the questi on] cal ls for hearsay. Just not the specific words, but it is effectively calling for hearsay .” The following exchange ensued:

PROSECUT O R: If it is not words it is not hearsay.
APPELLANT: The question ass ume s that, Your Honor. THE COURT: The question was: W as a report made? You may answer

that question.
The prosecutor repeated the question, and Foster confirmed that J.G. made “an out c ry of some type of sexual abuse” during the forensic inte rview. In h is second point of error, appellant argues that the tri al court erred by allowing this testimony because it constituted inadmissible indirect hearsay.

Hearsay is a statement, other tha n one made by the declarant while testifying at a trial, o ffered in ev ide nce to prove the truth of the matter asserted . Tex. R. Evid. 801(d). Hearsay is generally inadmissible except as provided by the rules of evidence or statute. Tex. R. Evid. 802. Th e hearsay prohibition cannot be circumvented by eliciting the substanc e o f the statement in indirect form. Schaffer v . State , 777 S.W.2d 111, 113 (Tex. Crim. App. 1989). If the content of a statement is present ed by implication, such “backdoor hearsay” i s subject to the same rules and limitations as the more co mmon form of he arsay. Cerda v. State , No. 03

- 12

- 00582

- CR,
2 014 WL 4179359, at *2

– 3 (Tex. App.

— Austin Aug. 22, 2014, pet. ref’d) (mem. op., not17

designated for publication); Gilbert v. State , 874 S.W

. 2d 290, 295 (Tex. App.

— Houston [1st Dist.] 1994, pet. ref ’ d); see Sch aff er , 777 S.W.2d at 113. Whether testimony vi olates t he hearsay prohi bition necessarily turns on how strongly the content of an out

- of

- cour t statement can be inferred from the context ; the question is whether the strength of the inference pro duces an “i nes capable conclusion” that the evidence is bein g offere d to prove the s ubstance of an out

- of

- court statement. Head v. State , 4 S.W.3d 258,
2 61

– 62 (Tex. Crim. App. 1999); Cerda , 2014 WL 4179359, at *2. “An analysis of whether the impermissible inference is so overriding as to fall within the hearsay p rohibiti on will necessar ily turn on the specific factual circumstances of a given case.” Head , 4 S.W.3d at 262 n.4.

In his brief, a ppel l ant complains that “the prosecutor’s sole purpose for asking
Foster w het h er J.G. ‘ma[d]e an outcry of some type of se xual abu se’ was to conve y to the jury that J.G. told the forensic interviewer that someone had sexually abused her.”

As an initial matte r , we observe that an out

- of

- court statement that is not offered for t he tr uth of the matter asserted, but for some ot her reas on, is not hears ay. Guidry v. State , 9 S.W.3d 133, 152 (Tex. Crim. App. 1999); Dinkin s v. State , 894 S.W.2d 330, 347 (Tex. Crim.
A pp. 1995 ) . “An extrajudicial statement . . . which is of fered for th e p urpose of showing what was said rather than for th e truth of the matt er stated therein does not constitute hearsay .” Dinkins , 894 S.W.2d at 347 (citing Crane v. State , 786 S.W.2d 338, 351 (Tex. Crim. App. 1990); Porter v. State , 623 S.W.2d 374, 385 (Te x. Crim. App. 1981); and Nixon v. State , 587 S.W.2d 7 09, 711 ( Tex. Crim. App. 1979)). Here, the context of the questioning indicates that th e State of

fered Fost er’s testimony about J.G.’s outcry statement to explain the investigative actions taken by CPS. T hus, it would not be outside t he zone of reasonable di sagreement for the trial court to find that the testimony was not offered to prove the truth o f the18

matter a sserted in J.G.’s outcry ( that appellant sexually assaulted J.G. in the manner that she des cri bed ) but i nstead was being offered to provide t he jury with relevant background information concerning the circumstances surrounding the CPS investi gation ( th e fact that J.G. made an outcry) to explai n the efforts Foster made to ensure the saf ety of the ch ildren and why she made them.

Moreover, hearsay by inference, or “b ackdoor hearsa y,” violates the prohibition
aga inst hearsay because it presents the content or substance, indirectly, of the out

- of

- c o urt statement. Here, the complained

- of t estimony d id not convey the content of J.G.’s out

- of

- court statements, even by imp lication. In no way did Foster convey any specific details abou t what J.G. dis closed during the forensic interview or impart any of J.G.’s descriptions of the sexual

- assault inciden t

. R ather, Foster’s testimony merely conv eyed, in a general way, that an allegation of sexual abuse had been made. S he simply confirmed that J.G. mad e an outcry statement, which dictated how she proceeded with her CPS investigation. This is comparable to

a p olice officer testifying that the police received a report of a parti cular crime and, based on that report, conduc t ed an investigation. The prohibi tion against indirect or backdoor hearsay does not prohibit a witness from testifying about actions she t ook in response to an out

- of

- court statement, but only from detai ling th e contents of the statement when doing so. S e e Schaffer , 777 S.W.2d at
114

– 15 (holding it was permissible for police off icer to testify that officer was acting in response to “inform a tio n received,” but officer was not permitted to relate historica l aspec ts of case, which were replete with hearsay s t atements); Dunbar v. State , No. 0 3

- 12

- 00315

- CR, 2014 WL 2741237 , at *5 (Tex . App.

— Austin June 13, 2014, pet. ref ’ d) (mem. op., not design a ted for publication) (“Witnesses are generally allowed to explain that a n out

- of

- court statement caused the witness t o take a particular action so long as the testimony does not strongly imply the content of the19

out

- of

- court statement.”); see, e.g. , Trevi n o v . State , No. 03

- 17

- 00156

- CR, 2017 WL 5119190, at *2 (Tex. App.

— Austin Nov. 3, 2017, pet. ref ’ d) (mem. op., not des i gnated for publication) (explaini ng that trial court could have reasonably concluded that officer ’ s testimony relaying complaints made by are a residents was offered to explain why police had decided to c onduct prostitution sting operation in that area).

Furthermore, the test for “backdo or hearsay” is whether the “‘State’s sole intent in pursuing [a] line of questioning was to convey to th e ju ry’ the contents of out

- of

- court statements.” Head , 4 S.W.3d at 262 (quoting Schaffer , 777 S.W.2d at 114). Becau s e the content of J.G.’s out

- of

- co urt statements was not impliedly presented in Foster’s testimony, and given
t he context in which the CPS inv estigator ’ s testimony was elicited , we are unable to conclude from th e record that the State’s sole intent in offe r ing the complained

- of tes timony w as to convey the content or substance of J.G.’s out

- of

- court statements. See id. (concluding that trial

cou rt could hav e reasonably determined that State’s intent in questionin g witness was not solely to convey out

- of

- cou r t statement). According ly, for the above reasons, we conclude that the trial court did not abuse its discretion in allowing the complai n ed

- of testimony of the CPS investigator. We overrule appellant’s second point of error.

CONCLUSION

Having conclud ed that the admi ssion of the complained

- of portion of the detective’s testimony about the indicators of deception that appellant exhibited dur i ng the police interview , if it was error and was properly preserved for appellate review, was not harm ful and that the trial court did no t abuse its discretion by admitting the complained

- of por tion of the CPS20

investigator’s testimony about J.G. ’ s fore nsi c interview , we affirm the trial court’ s judgment of conviction.

_____________________________ _______ ______ Edward Smith, Justice Befo re J ustices Goodwin, Baker, and Smith Affirmed Filed: August 7, 2019
D o Not Publish