COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

KARL QUI

NTON JOHNSON, Appellant,

v. THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-10-00094- CR

Appea l from Criminal dist rict Court No. 2 of Tar rant County , Texas (TC # 1124720D)

O P I N I O N
Kar l Quinton J ohnson appea ls his conviction of two counts of sexual assault of a child under

sevente en y ear s of ag e, enha nced by two prior felony convictions. After the j ury found Appe llant
g uilty , the tri al co u rt found the habitual offe nder enhanc ements true and assessed Appellant’s punishment at imprisonment for fifty y ear s on eac h count. We aff irm.
F ACTUAL SUMMA RY
At the time of the offe nse, Appellant was m arr ied to Phy llis J ohnson. Phy llis’s brother,
L orenzo Allen, J r., is marrie d to Eva Allen, the mother of the six teen- y ear -old victim, Danika Allen. Danika had known both Appellant and Phy llis all of her life and she was close with her Aunt Phy llis, whom she consider ed to be a “sec ond momma.”
On the morning of Aug ust 13, 2008, one of Eva’s friends from churc h took her to brea kfast to provide enc ourag ement bec ause the Allens’ thirtee n-y ear -old son, Danny , had died two months

ear lier. The death had been difficult for all of the family but particula rly so for Danika. J ust befor e leaving the house, Eva briefly woke up both Danika and L orenzo to tell them wher e she was g oing.
Eva returne d in about two hours and found her husband still aslee p but Danika was not at home.This was unusual bec ause D anika alway s g ot permission befor e leaving the house. After a while,

Eva and L orenzo beg an looking for Danika but they could not find her any wher e. Eva called Phy llis but she had not seen Danika either. Finally , at about 6 p.m., Danika called and said that she was with Appellant. Da

nika’s voice was shaky but Eva assumed that it was be cause Danika w as af raid she would be in trouble for leaving the house without permission. Eva felt relieve d beca use she had no

rea son to distrust Appellant. I mmediately afte r this brie f call, Eva spoke with Phy llis and told her that Danika was wit h Appellant. Phy llis replied that Danika c ould not be with Appellant because he was at work. After hang ing up, Phy llis drove by Appellant’s workplac e and did not see his car . 1
Eva and Phy llis beg an waiting for Appellant to bring Danika home . Whil e Eva was calm, Phy llis beca me hy sterica l and she urg ed Eva to call the police when Danika had not returne d by midnight.
Eva did not call the police at midnight since Appellant was a family member but she beg an to panic

as more time passed and she finally made the call at ar o u n d 2 or 3 in the morning

. She g ave the police the number Danika had called f rom the pre vious eveningand she le arne d that it wa s from a
pay phone. Da

nika walke d in the house t he following m orning at 8 a.m. wit h her f riend, Mar iah. Appellant had dropped Danika off at Mariah’ s house beca use he did not want to take Danika to her house. Danika had walked the rest of the way home. Danika appea red depre ssed and withdrawn but she denie d that any one had touc hed her

. L ater that day , Phy llis call ed and asked Eva to bring Danika to her house. Phy llis was furious and threa tened to kill Appellant who had not y et returne d home. During the drive, Eva saw Appellant in a vehicle and he attempted to flag her down but she ref used to stop. Eva called Phy llis

on her cell phone and told her that Appellant had tried to interce pt them. Phy llis told her to not stop. Appellant followed them but he took off when he saw Phy llis come out of the house. Eva believed

A p p e l l a n t w o r k e d t h e s e c o n d s h i f t a t G r e e n B a y P a c k a g i n g . 1Phy llis had a g un. Eva attempted to calm Phy llis by rea ding scripture s and pray ing with her. Danika told Phy llis that nothing had happene d. They visited with Phy llis for an hour or so befor e returning home. The following day , Phy llis ca lled and told Eva to take Danika to her g randmother Marg ie’s house. When they arr ived, they found Appellant at the house. Danika went straig ht into a bedroom wher e she talked with Phy llis. Danika continued to deny that Appellant had eng ag ed in any sexual activity with her. L ater , Danika told Phy llis t hat Appellant and some other men had touched her. Phy llis beca

me ang ry and hit Appellant. Phy llis made Danika tell the family what she had just told Phy llis. One of the fa

mily members c alled the police and Appe llant was ar rested. Danika testified about what h appened while she was with Appellant. Danika rec alled

answe ring the door that morning and finding Appellant, who she ref err ed to as Uncle Kar l, at the door. Danika was dresse d in a tee- shirt, pajama bottoms, and slippers. Danika told Appellant that her mother had g one to brea kfast and her fathe r was still aslee p. Appellant invited Danika to g o with
him to McDona ld’s and told her not to wake her fathe r beca use they would be back in a few minutes. Danika ag ree d and she left the house in her pajamas. After stopping at McDona ld’s, Appellant drove

to a “cr ack house.” Appellant went inside while Danika waited in the car and ate. They left the

cra ck house and went to Appellant’s home for a short time but then returne d to the cra ck house. Danika ag ain waited in the car for about an hour befor e Appellant came out of the house and asked Danika t o g o inside with him. Appellant smoked cra ck while talking with a man he called “Old School.” After a while, Appellant walked over to Danika and demande d that she stan d u p and

remove her clothes. She noticed that Appellant’s demea nor had chang ed and she had never seen him act that way . Danika complied beca use she was scare d. Both Appe llant and Old S chool s exually assaulted her for about an hour. During the assault, Danika thought how it would brea k her mother’s hear t to know she had been sexually assaulted and her mother had alre ad y b ee n t hroug h so muchwith Danny ’s death. Danika dresse d afte r Appellant and Old School went into another room. After

a while, Danika went into the other room and asked if she could g o home. Appellant ag ree d and they
g ot in the car but he took Danika to a motel wher e he rente d a room. Appellant told Danika that she neede d to clean up befor e he took he r home so she g ot in the shower. Appellant g ot in the show er with her and touched her body and rubbed on her. After gett ing out of the shower, Danika asked Appellant for money to call her mother. Danika went to a pay phone and called her mother. Danika told her she was with Appellant but she did not tell her mother wher e she was at or what Appellant had done to her. When Danika returne d to the motel room, two women came into the room and beg an using drug s and eng ag ing in sex with Appellant. After one of the women made a phone call, another man arr ived and s ex u al l y assaulted Danika. After these people left, Danika fell aslee p. During the night, Appellant eng ag ed in anal and vag inal intercour se with Danika. Danika rec alled that it hurt badly when Appellant place d his penis in her anus. The following morning , Appellant d ro ve Danika to her friend Mariah’ s house and he told her to tell ever y one she had been with her boy friend, Trey

. Danika ag ree d beca use she thought if she just told Appellant what he wanted to hear he would “let [her] out safe and sound.” Danika did not tell Mariah that Appellant had sexually assaulted her. Mariah g ave her clothes to wea r so she did not have to g o home in her pajamas which

wer e dirty

. Danika was afr aid to g o home beca use she did not want to tell her mother what had happene d. Consequently , Danika initially told he r mother and Phy llis that nothing had happene d.
S h e did tell them Appellant had taken her to a cra ck house and motel but she denied any sex u al abuse. At some point afte r returning home, Danika spoke wit h Trey and tol d him ev er y t hing that had happene d to her. Trey encour ag ed her to tell her family about the assault. After speaking with Trey by telephone, D anika told Phy llis t hat Appellant ha d assaulted he r. That same day , Danika underwe nt a sex ual assault ex am i n ati on. The sex ual assault nurseexaminer found a larg e one- half to one c entimeter te ar in the a nus. The tea

r wa s red, indicating it was fresh, and it was consistent with anal pene tration. The nur se also collec ted fore nsic evidenc e during the exam and the evidenc e was later submitt ed for analy sis. Sperm was found on the peria nal,
vag inal, and vulvar swabs. DNA analy sis reve aled that Appellant could not be excluded as the DNA contribu t o r of the sperm fra ction on the vag inal and anal swabs wher eas 99.998 perc ent of the
Ca u c a s ia n , A f r ic a n - A me rica

n, and Southwestern Hispanic populations could be e xc lu d e d a s p o s s ib le contributors to the DNA mix ture.
Detec tive Br ent Ezelle conducte d a rec orded interview of Appellant on the day of his arr est. Appellant admitted that he picked up Danika at her house and took her to a cra ck house. Appellant initially denied having sex with Danika but when Detec tive Ezelle asked him whether he put his penis in her vag ina, Appellant replied, “I hit it a littl e bit, man.” He added that he did not ejac ulate. The jury found Appellant g uilty of C ounts 1 and 2 of t he indi ctment which alleg ed that he sexually assaulted Danika by contac ting her sexual org an and anus with his sexual org an. The jury acquitted Appellant of Count 3 which alleg ed that Appellant’s mouth contac ted the victim’s sexual
org an, of Count 4 which alleg ed that Appellant inserted his fing er in the victim’s femal e s ex ual
org an, and of Count 5 which alleg ed that Appellant contac ted the victim’s br east with the intent to

arouse or g ratify his se x ual desire. T he trial c ourt found the ha bitual offende r alleg ations true and assessed A

ppellant’s punishment at imprisonment for fif ty y ear s on eac h count.
VICTIM’S STATE MENTS TO NURSE
I n I ssues One and Two, Appellant challeng es the trial court’s decision to admit the testimony of t he sex ual assault nurse ex aminer reg arding hear say statement s made by the vi ctim. Appellant
arg ues that the State failed to establish the predic ate for admission of thes e s t at ements under
T E X .R.E V I D
. 803(4) beca use t h e n u rs e took the history from the victim in order to assist her incollecting fore nsic evidenc e ra ther than f or medica l treatment or dia g nosis. Caroly n Walsh, the sexual assault nurse examiner, took a history from Danika by asking her

to explain in her own words what happene d to he r. Walsh testified that a history is ta ken from the patient fo r t h e p u rp ose of medical trea tment and to g ive the examiner direc tion when collecting evidenc e. Walsh testified over A ppellant’s hea

rsay objection that Danika

told her that:
Ba sically she stated that he, being her uncle, told her they wer e g oing somewher e and didn’t take her there

. That he had lied to her. They ended up at a cra ck house wher e he then proce eded to bring another g entlemen in. And himself -- and he masturbated in front of her, put his fing ers in her g enitalia, and the n was sucking on her br east. Then they left. She kept wanting to g o home. He would not take her. They left there and went to a motel wher e then prostitutes wer e broug ht in and another g entlemen. And she was then assaulted ag ain by her uncle both va g inally and in the anus. And also by another g entleman that wa s there.

Standard of Review
We revie w a trial court’s decision to admit or exclude evidenc e under an abuse of discretion standard. Shuffield v . State , 189 S.W .3d 782, 793 (Tex.Crim.App. 2006) ; McD onald v

. State , 179
S.W .3d 571, 576 (Tex.Crim.App. 2005). The trial court abuses its discretion only when the decision lies “outside the zone of rea sonable disag ree ment.” W alters v. State , 2 4 7 S

. W

. 3 d 2 04, 217 (Tex.Crim.App. 2007). Rule 803( 4)
Hea rsay is a statement, other than one made by the dec lara

nt while testify ing a

t the trial or hear ing, o ff

ered into evidenc e to prove the truth of the matter asser ted. T E X .R.E V I D
. 801(d).
Hea rsay is g ener ally inadmissible except as provided by statute or rule. T E X .R.E V I D
. 802. Once the opponent of he arsa

y evidenc e makes the proper objection, it be comes the burde n of the propone nt of the evidenc e to establish that an exception applies. Taylor v. State , 268 S.W .3d 5 7 1 , 578-79 (Tex.Crim.App. 2008). Rule 803(4) provides an exception for “[s] tatements made for purposes ofmedical diag nosis or treatment a nd descr ibing medic al history , or past or pr esent sy mptoms, pain,

or sensations, or the inception or g ener al char acte r of the cause or external source there of insofar as

rea sonably pertinent to dia g nosis or trea tment.” T E X .R.E V I D
. 803(4). Rule 803(4) is based on the decla rant’s strong motive to tell the truth in order to rec eive proper medical diag nosis and trea tment. Taylor , 268 S.W .3d at 580; see Be heler v . State , 3 S.W .3d 182, 188 (Tex.App.--F ort Worth 1999, pet. ref ’d)( noting that the exception is based on the assumption that the patient understands the importance of being truthful with the medica l p er s o n n el to rec eive an acc urate diag nosis and

trea tment). For evidenc e to be admissible under this exception, the proponent must show that: (1) the decla rant was aware t h at t he statements wer e made for the purpose of medical diag nosis or
trea tment and that proper diag nosis or trea tment depends upon the vera city of such statements; and (2) the particula

r statement proff

ere d is pe rtinent to tr eatment or diag nosis. Taylor , 268 S.W .3d at 589-91. Appellant complains that Danika did not understand the purpose of the exam, and there fore , she could not have been awa re of the nece ssity to be truthful when rela ting her medical history

. The
prosec utor had the f

ollowing e x chang e with Danika about the sexual assault examination: [The prosecutor ]: Okay . And did y ou g o to the doctor? [Danika]: Yes. [The prosecutor ]: Did y ou tell the doctor wha t happene d or the nurse ? [Danika]: I don’t reme mber telling the story ag ain. [The prosec utor]: Okay

. Did they ask y ou why y ou wer e there at the hospital, do y ou reme mber? [Danika]: No, I don’t reme mber. [The prosecutor ]: Okay . Did they do a phy sical exam of y ou?[Danika]: Yes.

[The prosecutor ]: Had y ou ever had one of

those befor e? [Danika] No. [The prosecutor ]: Was it a good e x perie nce or a bad e x perie nce or

can y ou say ? [Danika]: I was just looking like why y ou g ot me on a bed like this, y ou know. And then I was kind of shaking beca use I didn’t want -- I was alre ady exposed to people and then I didn’t want to be exposed to nobody else. So it was kind of har d for he r to examine what was g oing on w ith me beca use I was shaking

. I n making his arg ument that Danika did not under stand the purpose of the exam, Appellant points exclusively

to Danika’ s statement “why y ou g ot me on a bed like this, y ou know.” When take n at fac e value and out of contex t, the statement c ould indicate Da nika did not understand the pur pose of t he ex am, but the s tatement was made in response to being asked whether it was a g ood or bad experience

. Danika had never befor e underg one a g y necolog ical examination so she had never been

on a examination table desig ned for that purpose and she was obviously nervous and upset. When considere d in context, her statement “why y ou g ot me on a bed like this” is better understood as an expression of her e motional discomfort during the examination. The Court of Criminal Appea ls rec og nized in Taylor that the decla rant’s awa

rene ss under the first part of the test can be inferr ed from the circ umstances wher e the decla rant is being seen for an inj ury or i llness in cer

tain healthca

re s et t ings such as an emer g ency room or phy sician’s office beca use an adult or child of sufficie nt ag e or mat urity will have an implicit awa rene ss that the doctor’s questions are desig ned to elicit acc urate information an d that vera city will serve his best interest. Taylor , 268 S.W .3d at 589. I n this case , the six teen- y ear -old victim was seen by the sexual assault nurse examiner in an emer g ency room setting less than forty -eig ht hours afte r the assaultiveconduct ended. Although the State did not ask Danika or Walsh questions t o es t ab l i s h whether 2
Danika had understood the need to be truthful during the medical history portion of the exam, there is nothing in the rec ord to neg ate that she possessed the n ec es s ar y awa rene ss. See Taylor , 268
S.W .3d at 589. The trial court could have rea sonably inferr ed from the circ umstances that the victim had the ne cessa

ry awa rene ss. Behe ler , 3 S.W .3d 188-89. Turning to the second part of the test, the proponent of the evidenc e must also show that the particu lar statement is pertinent to trea tment or diag nosis. The object of a sexual assault examination is to asce rtain whether the victim has been sexually abused and to deter mine whether further medical attention is neede d. Behe ler , 3 S.W .3d at 189. Consequently , the victim’s descri ption of the particula r acts of sexua l ab u se are pertinent to the medical diag nosis and trea tment. Id. Walsh specific ally testified that obtaining the history from the victim was nece ssary for medical trea tment. She elicited from Danika that she had been sexually abused over an extended period of time by more than one a ssailant and the a buse included pe netra tion of the fema le sexual org an and a nus. Ba sed on this information, W alsh examined these ar eas of the victim’s body for injury and found a larg e
t ea r i n the anus. The trial court did not abuse its discretion by impliedly finding that Da n i k a’ s descr iption of the acts of a buse wa s pertinent to trea tment or diag nosis. Appellant asser

ts tha t the following statements are not pe rtinent to dia g nosis or trea tment: (1) Appellant lied to Danika; (2) Appellant took Danika to a cra ck house; (3) Appellant masturbated
in front of her; (4) Danika wanted to g o home but Appellant would not take her; (5) Appellant took her to a motel wher e prostitutes and another m an wer e broug ht into the room; and (6) Danika identified Appellant as the perpe trato r. The State responds that identify ing both the environment

D a n i k a t e s t i f

i e d t h a t A p p e l l a n t s e x u a l l y a s s a u l t e d h e r d u r i n g t h e n i g h t o f A u g u s t 1 3 , 2 0 0 8 a n d t h e e a r l y 2

m o r n i n g o f A u g u s t 1 4 , 2 0 0 8

. D a n i k a r e t u r n e d h o m e a t 8 a . m . o n A u g u s t 1 4 , 2 0 0 8

. S h e t o l d h e r f a m i l y a b o u t t h e a s s a u l t t h e f o l l o w i n g m o r n i n g a t a r o u n d 1 1 a . m . a n d t h e s e x u a l a s s a u l t e x a m w a s p e r f o r m e d t h a t s a m e d a y .wher e the assaults occur red and the other assailants is nece ssary for the medical personne l to conduct

a thoroug h examination and anticipate any conseque nces that the victim might have suffe red as a result of the assault. Walsh did not e x pressly testify that obtaining this infor mation w as nece ssary for medical diag nosis and trea tment but it is rea sonable for a healthca re provider to asce rtain whether the child victim had been sexually assaulted by more than one assailant, and whether she had been exposed to drug s or sexually transmitted diseases. The second and fifth statements are pertinent to these de terminations. Appellant takes particula

r issue with Walsh rela ting that Danika had identified her uncle as the per petra tor. He arg ues t hat t he st atement is not pertinent to diag nosis or trea tment. When the
perpe trator of a sexual assault is a family member, a child victim’s statement identify ing her assailant is rea sonably pertinent to diag nosis and trea tment beca use the trea

tment of child abuse includes removing the child from an abusive setting. Bargas v. State , 252 S.W .3d 876, 8 9 6 (T ex . App.--
Houston [14t h Dist.] 2008, no pet.); Fleming v. State , 819 S.W .2d 237, 247 (Tex.App.--Austin 1991,
p et

. ref ’d); see United States v. Renv ille , 779 F.2d 430, 437-38 (8th Cir. 1985)(c hild v i ct i m ’s

statement identify ing her assailant admissible under FRE 803(4) beca use the statement is rea sonably pertinent to trea tment of psy cholog ical and emotional injury resulting from child abuse and the exact
nature and extent of the psy cholog ical proble ms often depe nds on the identity of the a buser)

. Finally , the State does not offe r any theory how the first, thi rd, and fourth statements are pertinent to m ed i ca l diag nosis or trea tment. Neve rtheless, the trial court could have rea sonably found that the statements reg arding Appellant’s conduct are rele vant to the exis tence and deg ree of
psy cholog ical and emotional injury

. See Renv ille , 779 F.2d at 437. We conclude that the trial court did not abuse its discretion by deter mining that the hear say statements wer e admissible under Rule 803(4).Even if the victim’s sta tements to Walsh are inadmissible under this e x ception, the err or is

harmless. We will not reve rse a trial court’s judgme nt based on the err oneous admission of evidenc e unless the err or aff

ects a substantial rig ht. T E X .R.A P P
. P

. 4 4

. 2(b); Taylor , 268 S.W .3d at 592; Johnson v. State , 967 S.W .2d 410, 417 (Tex.Crim.App. 1998). Substantial rights ar e not af fec ted by the err oneous admission of evidenc e if the appellate court, afte r examining the rec ord as a whole, has fair assura

nce that the err or did not influence the jury , or had but a slight eff ect. Motilla v. State , 78 S.W .3d 352, 355 (Tex.Crim.App. 2002); Steve ns v. State , 234 S.W .3d 748, 784 (Tex.App.--F ort Worth 2007, no pet.). The err or in admission of evidenc e is harmles s wh en substantially simil ar evidenc e is introduced at trial. Bourque v. State , 156 S.W .3d 675, 677 (Tex.App.--Da llas 2005, pet. ref ’d). Appellant arg ues that the admission of this evidenc e is not harmless beca use it corr oborate d Danika’ s testimony

. I n asser ting that Danika’ s testim o ny h a d s e r io u s c r e d ibility problems, Appellant points to her failure to seek help when she left the motel room to call her mother, her repe ated denial that any abuse had occur red, and the di s cr ep an ci es betwee n her testimony and what she told the detec tive who investig ated the c ase. 3
Walsh’s testimony was prese nted afte r Danika testified in detail about the offe nse. Walsh’s testimony cer

tainly showed that Danika had previously g iven a statement c o nsistent on cer tain points with he r trial testimony , but the hear say statements do not pertain to the particula r points re lied on by Appellant to challeng e Danika’ s cre dibilit y . The hear say testimony does not explain why Danika failed to seek help or why she i nitia l ly denied that any abuse had occur red. Fur ther, admissi on of

A p p e l l a n t i d e n t i f

i e s t h e f o l l o w i n g d i s c r e p a n c i e s : ( 1 ) D a n i k a t e s t i f i e d s h e w a s n o t w e a r i n g a b r a w h e n s h e l e f t 3 t h e h o u s e b u t s h e t o l d D e t e c t i v e E z e l l e t h a t s h e h a d w o r n a b r a ; ( 2 ) D a n i k a t e s t i f i e d t h a t A p p e l l a n t g o t i n t h e s h o w e r w i t h h e r a t t h e m o t e l b u t s h e t o l d E z e l l e t h a t A p p e l l a n t l e f t t h e m o t e l r o o m w h i l e s h e w a s i n t h e s h o w e r ; a n d ( 3 ) D a n i k a t e s t i f i e d t h a t A p p e l l a n t t o l d h e r t o t e l l e v e r y o n e s h e h a d b e e n w i t h T r e y a n d D a n i k a a g r e e d , b u t s h e t o l d E z e l l e t h a t s h e t o l d A p p e l l a n t s h e w a s g o i n g t o t e l l h e r m o t h e r w h a t A p p e l l a n t h a d d o n e a n d s h e w o u l d h u r t h i m .the hear say did not diminis h Appell an t ’s abil ity to utiliz e the alleg ed discrepa ncies in Danika’ s testimony to c halleng e her c redibility

. Reg arding Appellant’s asser tion that he was harme d by the hear say statement identify ing him as the perpe trator, the rec ord contains o t her evidenc e which supports an i n fe renc e that Danika was with Appellant while she was missing. Eva testified that Danika told he r when she called that she was with A ppellant and Phy llis conf

irmed that Appellant

was absent from work. Fu r th e r , th e D N A e v id e nce corr oborate d Danika’ s identification of Appellant

as the perpe trator of the sexual assault. The rec ord also includes evidenc e demonstrating Appellant had a consciousness of g uilt beca use he tried to interce pt Eva and Danika as they wer e on their way
to talk with Phy llis. Finally , Appellant admitted during his interview that he “hit it a littl e bit” when asked by the detec tive whether he had put his penis in the victim’s fema le sexual org an. After examining the entire rec ord, we conclude that any err or in admitting the hear say did not influence the jury , or had but a

slight ef fec t. I ssues One a

nd Two ar e over

ruled.
CHARACTER EVIDENCE
I n I ssue Three, Appellant arg ues t hat t he trial court abused i ts discretion by permitting t he
State to ask Phy llis J ohnson “did y ou know” qu es tions when Appellant had not first introduced char acte r evidenc e. Appellant contends that the line o f q u es t ioning was impermissible under
T E X .R.E V I D
. 608 and it was harmful beca use it had the eff

ect of trivializ ing Phy llis’ testimony and humiliating her befor e the jury

. The State responds that the line of questioning was a proper method of re butting a de fensive the ory . I t is undisputed that Ap p ell ant’s defe nse included an attack on the cre dibilit y of the complainant. The defensive theory was that Danika had c onsensual sex with her boy friend, Trey , while she wa s with Appellant, and she f alsely acc used Appe llant to hide her indiscre tion from her family

. I n support of this theory , Phy llis testified that Danika had repe atedly denied any abuse andshe made t h e acc usation ag ainst Appellant only afte r talking with the boy friend and while he

rema ined on the open telephone line. During cross-e x amination, Phy llis stat ed t h at she initially believed Danika’ s acc usation ag ainst Appellant but she later chang ed her mind afte r catc hing Danika in se vera l lies. At this point in the testimony , the State attempted to a sk Phy llis whe ther she knew Appellant had m ade cer tain admissions during interrog ation. Appellant raised a number of objections which did not r elate to Rule 608. The prose cutor then arg ued that beca use the witness 4
had expressed a neg ative opinion about the victim’s cre dibilit y , he was entitled to explore whether her opinion would chang e if she knew cer tain fac ts alre ady admit t ed i n t o evidenc e. Appellant responde d with the following objection:
Your Honor, the only person that asked her about any thing t h at would sug g est her opinion of the cre dibilit y of the witness was the prosec ution. So now they ’re bootstrapping

. They -- they ’ve have [si c] g one down this road and they perha ps don’t like the response s, so now they ’re looking to -- throw these outside statements in and the form of the question is improper. The trial court overr

uled the object i o n and g ave Appellant a running objection to the line of questioning. The prosec utor then asked Phy llis a number of “did y ou know” questions based on Appellant’s admissions made during his rec orded statement and the DNA evidenc e all of which had alre ady been introduc ed into evidenc e. 5 Appellant contends that the State is not permitted to reha bilitate its witness and at the same time attack the defe nse witness by “showing specific instances of truthfulness.” Rule 608 addre sses

A p p e l l a n t i n i t i a l l y r a i s e d t h e f o l l o w i n g o b j e c t i o n s : ( 1 ) “ O b j e c t t o t h e f o r m o f t h e q u e s t i o n a n d t h e r e l e v a n c e 4
o f w h e t h e r a n y w i t n e s s i s s u r p r i s e d ; ” ( 2 ) “ I o b j e c t t o t h e f o r m o f t h e q u e s t i o n w h e t h e r t h e w i t n e s s i s s u r p r i s e d a n d i t ’ s a c o m p a r i n g t e s t i m o n y . I t ’ s a r g u m e n t a t i v e a n d i t ’ s - - n o t r e a l l y t h i s w i t n e s s ’ s p e r s o n a l k n o w l e d g e o f a n y t h i n g ; ” ( 3 )

“ Y o u r H o n o r , I ’ m g o i n g t o c o n t i n u e t o o b j e c t t o t h e f o r m o f t h i s - - t h i s q u e s t i o n i n g , a s k i n g h e r a b o u t e v i d e n c e t h a t s h e h a s n o t h e a r d , t h a t t h e d i s t r i c t a t t o r n e y k n o w s s h e h a s n o t h e a r d

. ”

F o r e x a m p l e , t h e p r o s e c u t o r a s k e d P h y l l i s w h e t h e r s h e k n e w A p p e l l a n t a d m i t t e d d u r i n g t h e i n t e r v i e w t h a t h e 5

w a s n a k e d i n f

r o n t o f D a n i k a , h e h a d o r a l s e x w i t h p r o s t i t u t e s , h e g o t i n t h e m o t e l b e d w i t h D a n i k a , a n d h e t o l d t h e d e t e c t i v e t h a t h e “ h i t i t a l i t t l e ” b u t d i d n o t e j a c u l a t e .evidenc e of char acte r and conduct of a witness. T E X .R.E V I D
. 608. I t provides that the credibility

of a witness may be attacke d or supported by evidenc e in the form of opinion or reputa tion, but the evidenc e may ref

er on l y t o charac ter for truthfulness or untruthfulness, and evidenc e of truthful char acte r is a dmissibl e only afte r the char acte r of the witness for truthfulness has been attacke d by opinion or reputa tion evidenc e or otherwise. T E X .R.E V I D
. 608(a)

. Specific instances of the conduct of a witness, for the purpose o f attacking or supporting the witness’s cre dibilit y , other than conviction of crime as provided in Rule 609, may not be inquired into on cross-e x amination of the witness nor prove d by

extrinsi c evide nce. T E X .R.E V I D
. 608(b). Appellant does not c ite any case s holding that Rule 608 prohibits a party from asking a witness questions about evidenc e alre ady admitted which conflicts with the witness’s testimony

. I ndeed, illumi nating such wea knesses in the witness’s testimony

is a primary

function of c ross-examination. I ssue Thre e is overr uled.
ADMISSION OF A P P ELL ANT’S STATE MENT TO POLICE
I n his final issue, Appellant conte nds that the trial cour t erre d by deter mining that his oral

statements wer e admissible bec ause he did not knowing ly , intelligently , and voluntarily waive his rig hts under Article 38.22 of the Code of Criminal Procedur e. Article 38.22 of the Code of Criminal Procedur e establishes proce dural s af egu ards for secur ing the privileg e ag ainst self-inc rimination.
T E X .C O D E C R I M .P R O C .AN N
. art. 38.22 (West 2005); Joseph v. State , 309 S

. W

. 3 d 20, 23 (Tex.Crim.App. 2010). No oral statement of an acc used made as a result of custodial interrog ation is admissible ag ainst the acc used in a criminal proce eding unless (1) the statement was rec orded and (2) prior to t h e s t at em ent but during the rec ording , the acc used was war ned of his rig hts and knowing ly , intelligently , and volun t ar i ly waived those rig hts. T E X .C O D E C R I M .P R O C .AN N
. art. 38.22, § 3. Subsection 2 require s that the defe ndant be infor med of the f

ollowing r ights: (1) he has the rig ht to rema in silent and not make any statement at a ll and that anystatement he ma kes may be used a g ainst him at his trial; (2) a ny statement he ma kes may be used a s evidenc e ag ainst him in court; (3) h e h as t he right t o have a l awy er present to advise him prior to and during any questioning; (4) if he is unable to employ a lawy er, he has the rig ht to have a lawy er appointed to advise him prior to and dur ing a ny questioning; a

nd (5) he has the rig ht to terminate the intervie w at any time.
T E X .C O D E C R I M .P R O C .AN N
. ar t

. 3 8.22, § 2(a)

. For the statement to be admissible, the defe ndant must knowing ly , intelli gentl y , and voluntarily waive the fore g oing rig hts. T E X .C O D E C R I M .P R O C .AN N
. art. 38.22, § 2(b); Joseph , 309 S.W .3d at 24. The burden is on the State to prove by a preponde ranc e of the evidenc e that a defe ndant knowing ly , intelligently , and voluntarily waived his Miranda rig hts. Joseph , 309 S.W .3d at 24. Appellant admits th at the require d war nings wer e g iven and he told the detec tive that he understood his rig hts, but he maintains that he never expli citly waived his rig hts. This is the same
arg ument made by the defe ndant in Joseph

. T h e C o urt of Criminal Appea ls stated that such an
arg ument runs contra

ry to the g ener al ru l e t h at neither a written nor an oral express waiver is require d. Joseph , 309 S.W .3d at 24. Whil e a valid waiver of rig hts will not be presumed from the silence of the acc used afte r war nings are g iven, a waiver need not assume a particula r form and, in

some case s, a “wa iver can be clea rly inferr ed from the actions and words of the person interrog ated.” Id. , quoting North Carolina v. Butler , 441 U.S. 369, 373, 99 S.Ct

. 1755, 60 L .Ed.2d 286 (1979). The question is not whether the defe ndant “explicitly ” waived his Miranda rig hts, but whether he did so knowing ly , intelligently , and voluntarily under the standard outlined in Moran v. Burbine , 475 U.S. 412, 421, 106 S.Ct

. 1135, 89 L .Ed.2d 410 (1986). Joseph , 309 S.W .3d at 25. Under this standard,

t h e relinquishment must have been voluntary in the sense that it was the product of a fre e anddelibera te choice rathe r than inti m i d at i on, coer cion, or dece ption. Moran , 475 U.S. at 421, 106

S.Ct

. at 1141. Fur

ther, the waiver must have been made wit h full awa rene ss of both the nature of the rig ht being abandone d and the conseque nces of the deci s i o n to abandon it. Id. Only if the “totality of the circ umstances surrounding the interrog ation” reve als both an uncoer ced choice and the requisite level of compre hension may a court proper l y conclude that the Miranda rig hts have been waived. Id

. The totality -of- the-c ircumstance s approa ch require s consideration of all the circ umstances surrounding the interrog ation, including the defe nd a n t’ s experience , backg round, and conduct. Joseph , 309 S.W .3d at 25, citing Fare v. Michae l C. , 442 U.S

. 707, 725, 99 S.Ct

. 2560,
61 L .Ed.2d 197 (1979). The rec ord supports a conclusion that Appellant’s waiver resulted from a fre e and delibera te choice without intimi dation, co erc ion, or dece ption. We have revie wed the testimony from the

s u p p ression hear ing and the audio rec ording of the interview. After rec eiving the war nings an d indicating that he understood them, App el lant participa ted in an interview which lasted approximately forty -two minutes and he did n o t as k for an attorney or terminate the interview. Ezelle testified and the rec ording ref lec t s t h at t h e detec tives did not threa ten Appellant or use phy sical or psy cholog ical coerc ion and they did not make him any promises in order to obtain the

statement. The totality of the circ umstances surrounding the interrog ation shows Appellant’s waiver was voluntary

. We now examine whether Appellant’s waiver was made wi t h ful l awa rene ss of both the

nature of the rig hts being abandone d and the conseque nces of the decision to abandon them. After bring ing Appellant into the interview room, Ezelle immediately turned on the rec ording device and

rea d Appellant the Miranda war nings found on State’s Ex hibit 1. Ezelle then as k ed Ap p ellant t o

rea d the war

nings himself and to place his initials next to eac h of the five war nings as he rea d them.After Appellant finished rea ding the war nings and initialing them, Ezelle asked Appellant whether he had any questions and Appellant stated he did not. Appellant indicated he understood his rig hts and signe d the war

nings form. Ezelle then asked Appellant whether he knew why he was there and
proce eded with the interview. The war nings made Appellant awa re of the rig hts set forth in Article 38.22, as we ll as the conseque nces of abandoning those rig hts. Joseph , 309 S.W .3d at 27. By indicati n g t h at he understood his rig hts and then fre ely answe ring the detec tives’ questions without invoking those rig hts , Appellant demonstrated by his conduct that he waived those rig hts. See W

ells v. State , No. 08-09-00110- CR, 2010 WL 3009306 at *6 (Tex.App.--El Paso J uly 30, 2010, pet. ref

’d)( finding that waiver could be inferr ed from the defe ndant’s p ar t i ci p ation in
i n t erview immediately afte r being war ned wher e defe ndant did not reque st counsel or ask t o terminate the interview) ; Gately v. State , 321 s.W.3d 72, 78 (Tex.App.--Ea stland 20 1 0 , n o p et. h

. )( fi n d ing that waiver could be inferr ed from the defe ndant’s words and conduct, including h i s wi l l i n g participa tion in the interview)

. The totality of the circ umstances shows that Appellant knowing ly , intelligently , and voluntarily waived his r ights under Article 38.22. We overr ule I ssue Four and af firm the judg ment of the trial c ourt.

Aug ust 31, 2011 ANN CRAWFORD McCL URE, J ustice
Be fore Chew, C.J ., McClure, a nd Rivera, JJ

. (Do Not Publish)