## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 21

- 00098

- CR

VANESSA LUCILLLE ALEXANDER , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 5th District Court Cass County, Texas Trial Court No. 2019F00 223

Before Morriss, C.J., Stevens and Carter , * JJ. Memorandum Opinion by Chief Justice Morriss

____________________ *Jack Carter, Justice, Retired, Sitting by Assignment2 

### ME MORANDUM OPINION Evidence suggests that complainant Debra 1 was around four o r five years old when Vanessa Lucille Alexander began sexually abusing her. At some time before her seventh birthday, Debra was placed with another family as part of a CPS 2 investigation. Over the next
few years , Debra displayed increasing levels of outb u r st s and fits, during some of which she
exhibited violent seizure

- type behavior. In therapy sessions , Debra began to discuss sexual
abuse that she claimed Alexander and others inflicted on her. T h ose circumstances led to an investigation, i nc luding two f orensic interviews with C hildren ’ s A dvocacy C enters (CAC s ), first at the Longview CAC in October 2016 and the second at the Texarkana CAC in September
2019. Debra ’ s outcry statement to the forensic in terviewer in Texarkana le d to Alexande r ’ s indictment f

o r con ti nuous sexual assault of a child. A Cass County jury found Alexander guilty of the offense, and the trial court sentenced her to sixty years ’ imprisonment. Alexander appeals. W e find t hat (1 ) the jury charge adequately set out th e at

- least

- thirt y day

- se paration element of the offense, (2) Alexander failed to preserve her complaint about not receiving transcripts of Debra ’ s two forensic interviews, (3) Alexander failed to preserve her
ch allenge s to the constitutionality of the Tex as discovery stat u te, a nd (4) the trial court did not abuse its discretion in admitting into evidence the recording of Debra ’ s second forensic
interview . Therefore, we affirm the trial court ’ s judgment and sentence.

1 To protect the victim’s identity and privacy, we refer to her by the pseudonym us ed i n the trial co urt. See T EX
. R. A PP
. P. 9.8(a).

2 T he Texas Depar tme nt of Family and Protective Services ’ Child Protective Services Division

.3

(1 ) The Jury Charge Adequate ly S et Out the At

- Least

- Thi r t y - Day

- Separation Element of the Offense
Alexander claims that the trial court ’ s charge to the jury erroneously failed to require the jury to find that two or more acts of sexual a buse occur red over a period of at least thirty day s. We find that the jur y cha r ge did adequate ly charge this element of the offense , and thus , there
was no error in the court ’ s instructions

. To obtain a convict ion of continuous sexual assault of a child, the State must prove, bey ond a reasonable doubt , that the defendant commit t e d two or mo re acts of sexual abuse over a span of thirty or more days. 3 The trial court must provide the jury with a charge that instructs the
fact

- finder on “ the law applicable to the case. ” T EX
. C ODE C RIM
. P ROC
. A NN
. art. 3 6 .14

. “ The purpose of the t rial court ’ s jury charge is to instruct the jurors on all of the law applicable to the

case . ” Cortez v. State , 469 S.W.3d 593, 598 (Tex. Crim. App. 2015)

. “ The application paragraph is the portion of the jury charge that appl ies the pertinent penal law, abstract
de finitions, and general legal principles to the particular facts and the indictment allegations. ”
Id.
Alexander complains that the application paragraph in the trial court ’ s charge failed to

re quire the jury to find that two or more of the all e ged sexual abuses occurred over a span of thirty or more days. She cites the following language from the charge ’ s applicat ion paragraph : To find the defendant guilty of continuous sexual assault of a ch ild, you must determin e whether the state has prov e d, beyond a reasonable doubt , four elements. The elements are that

- -

3 See T EX
. P ENAL C ODE A NN
. § 21.02. (Supp.). The statute lists various qualifying acts o f sexual abuse , age re qu i r ements , and o ther definitions no t c h allenged by Alexander and not relevant to res olu tion of this issue.4

(1) the defendant , in Cass County, Texas, during a perio d between on or about March 30, 2013 [,] and on or before August 7, 2014 [,] commit ted two or more of the

. . . alleged acts of se xua l abuse [ .] Alexa nder continues by quot ing several paragraphs from the charge , each setting forth the

s pecific elements of various sexual assault offenses.
If the court ’ s charge indicated no more than the above quoted by Alexander, she would
be correct , and the charge would have been erroneous. Language such as the above “ suggests to the jury that the thirty

- day requirement was met if it found Appellant committed two or more

acts during a period of thirty days or more ” rather than the statute ’ s requirem e nt that two acts

“ mus t occur thirty or more days apart. ” Turner v. St ate , 573 S.W.3d 455, 462

– 63 (Tex. App.

— Amarillo 2019, no pet.)

. However, the court ’ s charge said more . A page later, a fter defining the “ four element s ”
that must be proved beyond a rea s on able doubt for the jury to convict Alexander and in advising
what m atters jurors must agree on unanimously and what they need not agree on , it adds, “ With regard to [the timing of the ind ividual acts of sexual abuse] , you m ust all agree that at least th i rt y days passed betw een the first and last acts of sexual abuse commi tted by [Alexander]. ”
The trial court ’ s application paragraph correctly instructed the jury about the charged
offense

. Since we find no error in t h e charge, our analysis is concluded

. See Ngo v. State , 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).
Th is point of error is overruled.5

(2 ) Alexander Failed to Preserve Her Complaint A bout Not Receiving Transcripts of Debra ’ s Two Forensic Interviews Alexa nder also contend s that the trial co u rt erred in failing to provide Alexander with a transcrip t of the two CAC interview s . However, Alexander did not make this objection to the
trial court until she filed a motion for a new trial, about twenty

- eight days after the trial court pronounced jud g ment

.

“ To be timely, a complaint must be made as soon as t he grounds for complaint [are] apparent or should be apparent. ” Wilson v. State , 7 S.W.3d 136, 146 (Tex. Crim. App. 1999) ( “ Ap pellant acted untimely by waiting to request a continuance until after jeopard y had attached

an d both sides had rested their cases

- i n - chief ” where potentially exculpatory evidence had been provided to the Appellant five days before trial). “ A defendant ma y not raise a matter for the
first ti me in a motion for new trial if h e had th e opportunity to raise i t at trial. ” Colone v. State , 573 S. W.3d 249, 260 (Tex. Crim. App. 2019)

. 4 Rule 33.1 of the Texas Rule s of Appellate
Procedure requires a party complain ing of some matter or ruling to make a “ timely request, objection, or m otion ” to the trial court that “ stated the grounds for the ruling that the comp laining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grou nds were apparent from the context

. ” T EX
. R. A PP
. P. 33.1(a).

4 In a motion for new trial, Colone complained about “matters relating to [a] cell

- phone data search, plea negotiations, th e selection of jurors, a nd t h e reconsider ation of [a] motion t o c h ange venue.” Colon e , 573 S.W.3d at 260. “ Bec ause [Colon e] had the opportunity to raise the [se] matters

. . . at trial, these matters were not timely raised in a motion for new trial. ” Id

.6

If Alexander felt it was important, as part of he r defensive strategy at trial, to have transcripts of both CAC interviews, she should have sought th ose before trial. 5 By asking for them pos t trial, she did not give the tr i a l court an opportunity to hear her request a nd grant or deny it. Not only did she not ask the trial court for a transcript, she made no attempt to explain
her need for such to the court. We overrule th i s point of error. (3) Alexander Failed to Preser v e Her Ch allenge s to the Constitutionality o f the Texas Discovery Statute
In four points of error , Alexander claim s that the Texas discovery statute 6 violates the
United States and Texas Cons t itutions

. 7 Just as with h er ar gument about transcript s of the CA C interview s , those complaints w ere apparent to Alexander before trial ended. Therefore, she
should have made those arguments to the trial court on a timely basi s . Certainly, Alexander presented t hose arguments to the trial court in a motion for a new tr i al

. But that was still not timely

. “ A defendant may not raise a matter for the first time in a motion for new trial if [she] had the opportunity to ra ise it at trial. ” Colone , 573 S.W.3d at 260 ; s ee also Alexander v. State , 137 S.W.3d 127, 1 31 ( Te x. Ap p . — H o uston [1st Dist.] 2004, pet. ref ’ d) (constitutional objections

5 Whether such transcrip ts w e r e obtaina ble is another matter, one not litigated at trial. A CAC interview rec ording may not be duplicated, reproduced , or copied , provided the “prosecuting attorney makes the electronic recording readily available to the def endant” as required un de r A r ticle 39. 15(d) of the Texas Code of C riminal Procedure

. T EX
. F AM
. C ODE A NN
. § 264.408(d

- 1) (Supp.).

6 See T EX
. C OD E C RIM
. P R OC
. A N N
. art. 39.14

. (Supp).

7 Alexander’s p oints of error three and four argue th at A rticle 39.1 4 of the Texas Code of Criminal Procedure , which govern s discover y p r o cedures in Texas criminal matters, violate s the U nited S tates and Texas Constitutions’ ri gh ts t o coun sel , while points five and six claim that the same provision violate s Alexander’s confrontatio n rights under both Constitutions. See T EX
. C ODE C RIM
. P RO C
. A NN
. art. 39.14

.7

first raised in motion for a new trial failed to satisfy Texas Rule o f Appellate Procedure 33.1(a) ’ s requirement that objections be made timely and at earliest opportunity; obje c t i o ns in m o tion for
new trial were untimely). Because Alexander could have voiced her challenges to the constitutionality of A rticle
39.14 to t he trial court before or during trial, her complaints in h e r motion for a new tri al were made too late, thus , f

a i ling to preserve those argument s f or our review. We overrule points of error three, four, five, and six. See C o l on e , 573 S.W.3d at 260. (4) The Trial Court Did Not Abuse it s Discretion in Admitting into Evidence the R ecording of Debra ’ s Second For ensic Intervie w Finally , Al exander argues that the trial court erred by admitting the recording of the
second CAC interview with Debra.

“ We review a trial court ’ s decision to admit or exclude evidence for an abuse of
discretion. ” Flowers v. State , 438 S.W.3d 96, 103 ( T e x . App.

— Tex arkana 2014, p et. ref ’ d) (citing Martinez v. State , 327 S.W.3d 727, 736 (Tex. Crim. App. 2010)). “ Abuse of discretion

oc curs only if the decision is ‘ so clearly wrong as to lie outside the zone within which reasonable people might disagree

. ’ ” I d. (quotin g Taylor v. S t ate , 268 S.W.3d 571, 579 (Tex. Crim. App. 2008) ) ( citing Montgomery v. State , 810 S.W.2d 372, 391 (T ex. Crim. App. 1990) (op. on
reh ’ g)). “ We may not substitute our own decision for t hat of the trial court. ” Id. (citing Moses v . S tate , 10 5 S.W.3d 622, 62 7 (Tex. Crim. App. 2003)). “ We will uphold an evidentiary ruling if it was correct on any theory of law applicable to the case. ” Id. (citing De La Paz v. State , 279 S.W.3d 336, 344 ( Tex. Crim. App. 2009)).8

After Debra testifi e d , the Stat e recalled the T exarkana CAC interviewer Missy Davison. Through her test i m o ny , the State offered the video record in g of the second forensic interview
conducted by Davison in September 2019

. T he Stat e argued that Alexander ’ s cross - examination
b o t h impeached Debra ’ s te sti mony and suggested that Debr a was inconsist ent in her testimony versus the statements she gave in the CAC interview. Ultimately , after entertaining arguments from the parties, th e trial court found the recording admissible as a p r i or consistent st ate ment

. In those arguments, Alexander had claimed that admitting the recording would improperly bolst er Debra ’ s testimony and was inadmissible hearsay , while the State had claimed tha t the recording
should be admitted for optional com p l e t eness and to est abl ish prior consistent statement s . The
court also reviewed a recent unpublished case from the Tyler C ourt of Appeal s t hat addressed the
admission of a CAC interview r e c o r d i n g . In Cort ez Chacon v. State , No. 12

- 18

- 00142

- CR , 2019
WL 47 2 7 5 9 3 (Tex. App.

— Tyler S ept

. 27, 2019, no pet.) (mem. op., not designated for publication) , 8 the reviewing court fou nd that the defense ’ s cross - examination of the complainant empha sized inconsistencies bet ween her testimony and statements made in the foren s i c interview
and sugg ested she “ may have decided to fabricate her testimony. ” Id. at *9.
I n Alexander ’ s case, the trial court pointed to cross

- examination questioning in which the defense repeatedly asked Debra about matters she discussed in the CAC i n t e r view that differed
from her trial test imony. Some examples included:

• At trial, Debra described a time at the home of Alexander ’ s boyfriend when Debra was placed on a coffee table , without her underwear, and three or four men were allowed to perform or a l s ex on her. Defense counsel asked why she had told the

8 Alexander was tried during the last week of January 2020, a few months aft er the Chac on opinion was released.9 forensic interviewer two men h ad been present and done this. Debra said she did not r em em ber telling the interviewer there were two men.

• Alexander ’ s counsel asked Debra whether, if a CPS intervi e w e r testified that Debra told the interv iewer “ no one ’ s ever touched [Debra ’ s] private p arts, ” if that statement would be true, Debra answered it would not be true because she

“ remem ber[ed] all the stuff that [Alexander] [had] done. ”

• Defense counsel foll o w e d this question with, “ But if the CPS wo rker says you didn ’ t tell her that, do you think the CPS case worker is lying? ” Debra replied,

“ Well, probably because I didn ’ t tell her beca use it was uncomfortable telling her because I still loved [Alexander]. ”

• Referencing a journal purportedly wri tten by De bra, 9 defense counsel asked Debra about a statement, “ So I ’ ve just come back from the dollar store in Avinger. ” Debra acknowledg ed that th at was written in the journal but stated unequivocally that she ha d n o t i n fact gone to that store.
Debra answered m any cross - examination ques tions about the CAC interview by saying she did
not remember.

“ [T] here need be only a suggestion that the wit ness consciously altered [her] testimony in order to permit the us e o f ea rlier statements that are generally consiste nt with the testimony at
tri al. ” Hammons v. State , 239 S.W.3d 798, 804

– 05 (Tex. Crim. App. 2007) ( quoting United
States v. Casoni , 950 F.2 d 893, 904 (3d Cir. 1991 ) )

. “ [ T ] hat ‘ there need be only a suggest i o n ’ of

co nscious alteration or fabrication gives the tri al court substantial d iscretion to admit prior
consistent statements under the rule. ” Id

. (qu ot ing Casoni , 950 F. 2d at 904 )

. “ There is no bright line between a general ch al le n g e to memory or credib i lity and a suggestion of conscious
fab ricati on, but t he trial court should determine whethe r the cross

- examiner ’ s questions or the

9 Alexander asked Debra about a book or journal that she had written, apparently around the time Deb ra moved to A labama wi th h e r foster parents.10

tenor of that questioning would reasonably imply an intent by the witness to fabricate. ” Id. a t 80 5.
T he few instances cite d above arguably contain some suggesti on tha t Debra f abricated or
altered either her statem ents in the forensic interview or her trial testimony. Also, the trial court
discussed the recent opinion issued from the Tyler Court of Ap pe a l s, which the trial co u rt had read while considering the par ties ’ arguments

. Referring to the Chacon opin ion , t he trial court told the parties, “ The re, the Court of Appeals said that a ppellant ’ s manner of questioning suggested to the jury th at the ch il d m a y have decided to fab r icate her testimony or that her

state ments we re inconsistent with the forensic inter viewer in conjunction with the cross

examination on the same topic. ” 10 I n not ing similarities between Alexander ’ s situation and that
i n Chacon , t he t rial court specifical l y referenced Alexander ’ s claim
that th e child ha [d] made inconsistent statements , and in fact, it ’ s specifically suggest [ing] that not only through the use of pointing out the handwriting the child ha [d] made [ 11 ] but r ep eatedly s ay in g that, you know, “ You t old the forensic in terviewer in this interview one thing, and now you ’ re saying somet hing different. ” Based on this record, we conclude that the trial court acted with reference to guiding rules and principl es, not a rbitrarily or u n r easonably , in admitti n g the record in g of Deb ra ’ s CAC interview

. Thus , the re was no abuse of discretion in that ruling

. See Robbins v. Stat e , 88 S.W.3d 256, 260 ( T ex . Crim. App. 2002) (citing Montgomery , 810 S.W.2d at 391 ) )

. This p oint of e rr or i s overruled.

10 Here , it appears the trial court was reading and paraphrasing from Chacon , 2019 WL 4727593 , at *9.

11 We assume that here , the trial court was referring to defensive cross

- examination about the journal Deb ra kept and questions by t he d e fense about whether Debra could have made written statements at ages four to five years old , before she had le arned to read.11

We affirm the tri a l cour t ’ s judgment.

Josh R. Morriss, III Chief Justice
Date Submitted: February 28, 2022 Date Decided: May 3 , 2022
Do Not Publish