Case Number: 01-15-00902-CR 01-15-00903-CR

Judge: Laura Carter Higley

Court: Court of Appeals For The First District of Texas

Plaintiff's Attorney:

Jessica Caird
The Honorable Kim K Ogg

Defendant's Attorney:

Wayne T. Hill  

Description: Mother testified that she met Appellant through work, began dating him, and
eventually they moved into a house along with Mother’s three daughters in 2008.
At the time, Alice was almost twelve, Belle was ten, and Cici, the complainant,
1 See TEX. PENAL CODE ANN. §§ 21.11 (Vernon 2011) & 22.021 (Vernon 2016).


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was age eight.2 Appellant became the family’s primary supporter because, as Belle
and Cici testified, Mother contracted multiple sclerosis. They lived together
happily until one night when Appellant and Mother argued and threw beer
containers at each other.
According to Mother’s testimony, Appellant was outside drinking with
friends. After she asked them to come inside, she went outside where she and
Appellant argued. Mother conceded that, after they argued, she threw a six-pack
of beer at Appellant, and then he threw a twelve-pack of beer at her, cutting her
forehead and cheek. Alice testified that she heard Mother go outside, and then she
heard a loud boom. Alice went outside, smelled beer and blood, and saw her
mother on the floor next to broken glass beer bottles with a bleeding gash on her
forehead. Belle testified that, after Alice woke her, she ran outside to the garage
and saw her mother bleeding and beating on Appellant’s car window. Cici also
saw her mother bleeding after the beer bottle incident.
Following this incident, the relationship between the girls and Appellant was
strained. Mother testified that, before the beer bottle incident, the girls would greet
Appellant, but afterwards, they did not want to be home with him on the weekends.
Priscilla Mango and Bryanna Gonzalez, Appellant’s daughters, also observed the
2 For the purpose of this appeal, we refer to the children using the pseudonyms Alice, Belle, and Cici, rather than using their initials, and their mother as Mother. See TEX. CODE CRIM. PROC. ANN. art. 57.02(h) (Vernon Supp. 2016).


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change in behavior. Mango testified that the girls initially called her father
“Daddy,” but stopped after the beer bottle incident. Gonazalez testified that “[the
girls] loved him like their own father,” but became cold and distant after the
incident. Also, during cross-examination, an investigator for the Texas
Department of Family and Protective Services (DFPS) testified that Alice told her
that she wanted Appellant out of the house and that she wanted her Mother and her
biological father to reconcile. According to the investigator, Alice’s dislike for
Appellant increased after the beer bottle incident. The investigator also confirmed
that Mother knew her daughters did not like Appellant. Belle and Cici both
conceded on the stand that they did not like Appellant.
In 2009, on the night of the first incident, Belle testified that she, Cici, and
Appellant were up late playing Monopoly, as they often were, and Mother had
gone to sleep. Belle lost. While the game continued, she fell asleep. She testified
that she woke up as Appellant tried to unzip her blue jean shorts to the light of a
camouflage-colored flashlight, but she rolled over, dissuading him. She also
testified that she saw Appellant move towards Cici with a flashlight, and then stand
over her. Belle said that she thought Appellant did the same thing to Cici.3
3 Belle also testified that on another date, Appellant attempted to kiss her on the mouth, but she pulled away from him. She did not mention this during her forensic interview.


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Cici testified that Appellant stood over her and pulled her nightgown up and
underpants aside to put his mouth and tongue on her genitals. Cici defined her
genitals as the part of her body she uses to go to the bathroom. Cici was scared
and “didn’t know what to do.”
Cici further testified that, after a while, Appellant stopped, retrieved a beer
from the kitchen, and came back. Appellant re-opened her legs by grabbing her
ankles, and returned to licking her genitals. Cici kept her eyes shut, so that
Appellant would not know she was awake.
Cici also testified that, on a second night, she awoke to Appellant
unbuttoning her shorts and sticking two fingers into her vagina, which she
demonstrated during trial using a Kleenex box. She was in the room where all
three girls slept. Unlike the last time, Cici said it hurt her, so she opened her eyes,
but she did not try to wake her sisters. Cici testified that Appellant stopped, went
to the bathroom, and washed his hands.
On a third night, Cici testified that she saw Appellant enter their room, but
Cici shook Alice awake. Alice questioned Appellant’s presence. Also, the noise
woke Mother, who asked Appellant to turn off the light. Appellant left the room.
Alice testified that she learned of the abuse from Belle and Cici in the
summer of 2010, and she started a rumor at school that Appellant had raped her.
She testified that the point of the rumor was to remove Appellant from the house or


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to call attention to Appellant’s wrongdoing. When confronted by a school
counselor, Alice conceded that she lied when she said that Appellant raped her.
The DFPS investigator testified that she received a report about suspected abuse in
April of 2011, and that both Belle and Cici told her about the sexual abuse.
All three girls were transported to, and participated in, forensic interviews at
the Children’s Assessment Center. Stephanie Jones, the forensic interviewer,
testified that Cici was 10 years old at the time of the interview and made the
comment “my stepfather raped me.”
The State provided Brady notices for the forensic interviews to Appellant.
Prior to and during trial, Appellant moved for copies of the forensic interviews in
order to fully prepare his defense. The trial court allowed access to the interviews,
but did not allow Appellant to copy the interviews. Both Appellant’s counsel and
expert reviewed all three videos prior to trial. Appellant also asked for a mistrial
on the basis that the lack of copies hindered his right to prepare and confront
witnesses, and the trial court denied the mistrial request. During its rebuttal case,
the State called the forensic interviewer, and, after Appellant waived his
objections, all three interviews were admitted by the trial court and published to
the jury.
During his cross-examination of the girls, Appellant highlighted
inconsistencies between their testimony on the stand and their forensic interviews.


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Belle conceded on the stand that in the forensic interview she did not mention the
flashlight, did not remember telling Cici to go to her room, did not see Appellant
get a beer after the initial abuse of Cici, and did not see Appellant go back and
touch Cici again. Cici testified that she did not remember Appellant using a
flashlight, and still did not remember the flashlight after reviewing her forensic
interview testimony in which she said she woke up to a bright light. Cici did not
tell the forensic interviewer about Appellant’s massaging her feet before she fell
asleep
Appellant, on appeal, calls our attention to discrepancies between Belle and
Cici’s testimony: Cici did not remember falling asleep on the couch, nor did she
remember anyone else being awake, even though Belle had testified to being
awake. Also, Belle said the girls did not wear shorts around Appellant, but Cici
said she was wearing shorts during the second assault.
Concerning the third night, Appellant also points out on appeal that Cici
testified in the forensic interview that her older sister, Alice, was at her
grandmother’s house, not at home, as she testified at trial.
Dr. Reena Isaac, a child abuse pediatrician and the medical director of the
forensic nurse team at Texas Children’s Hospital, conducted the medical
examinations for the DFPS investigation, and specifically of Cici. Isaac testified
that Cici told her that Appellant touched “in my private parts” and pointed to her


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genitals. Isaac related that Cici said Appellant touched her genitals with his mouth
and his fingers two times, but Cici never saw Appellant’s private part. Isaac
further testified that she found no damage in Cici’s genital area, which was
expected because any damage could have repaired itself within days. On cross
examination, Isaac conceded that, even though the exam itself is not dispositive,
she did not see any physical signs of abuse.
Dr. Gilbert Garcia, a pediatrician with Northeast Pediatric Associates of
Humble, testified that Cici visited his office twice in 2011. The first was a normal
visit, where everything “looked fine.” On a second visit for an upper respiratory
infection several months later, Mother and Cici met with one of Dr. Garcia’s
physician’s assistants. Dr. Garcia read the assistant’s notes to the jury, which
indicated Mother was very concerned about child abuse dating back two years, and
she asked for a referral to a psychiatrist:
Mom states that patient was sexually abused for over two years. She found out this April that her boyfriend was sexually abusing [Belle] and her sister. Mom had gone to the police and both girls had been examined by CPS physicians. The boyfriend is no longer in the picture. Mom is pressing charges. Mom is very concerned, crying in the office. She states that the girls do not talk about what happened and are very withdrawn. Mom would like for them to be seen by a psychiatrist.
Dr. Garcia testified that his office did make a referral, but Mother never updated
them about any treatment CiCi was receiving.


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Dr. Mathew Ferrara, a licensed psychologist and licensed sex offender
treatment provider, suggested on the stand that about 42% of sexual abuse
allegations are unfounded. He stated that false allegations most typically occur in
older children who either have specific motives or who are coached for custody or
divorce hearings by a parent. Motives may include lying to protect a parent from
being hurt by another. Ultimately, he asserted that contradictions in the testimony
of children are the key to identifying whether a statement is false. Dr. Ferrara
suggested that if one child says she saw someone touching another’s genitals with
his fingers, but another child felt or saw the offender touching her genitals with his
mouth, that would be a major contradiction.
Dr. Ferrara also confirmed, on cross-examination, a few basic truths about
child sexual abuse: victims and offenders usually know one another; offenders can
have active sexual relationships with their spouses while committing sexual
offenses with children; and intoxication could encourage an offender.
Appellant provided three character witnesses: his ex-wife, a relative, and a
neighbor. Appellant’s ex-wife testified that she had known him for 30 years, and
he was a good person, despite her having filed a protective order against him in the
past. His ex-wife testified she filed the protective order after three death threats.
First, Appellant threatened to kill his ex-wife when he caught her alone. Second,
he followed his ex-wife into a neighbor’s house, and told everyone that they could


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neither leave nor use a phone. He, then, shoved her into a wall, while grabbing and
squeezing her wrists, saying that if he hit her, she would not get up. Third, he
grabbed her arm while she was leaving work and threatened to kill her because he
said that she was having a relationship with another man.
Enedelia Pina, who identified Appellant as her husband’s nephew, testified
that she knew Appellant, and knew he was a peaceful and law abiding citizen.
Michael Santos, Appellant’s neighbor since 1977 and a sergeant with the Harris
County Sheriff’s Office, testified that Appellant was a peaceful, law-abiding
citizen and a good neighbor. Both Pina and Santos were aware of the beer bottle
incident, but it did not change their opinion of Appellant.
In June 2012, the State indicted Appellant for the offenses of aggravated
sexual assault of and indecency with Cici, a child under the age of fourteen. The
indictments for aggravated sexual assault and indecency with a child alleged,
respectively:
The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Harris County, Texas, ROEL DAVID GONZALEZ, hereafter styled the Defendant, heretofore on or about JANUARY 1, 2009, did then and there unlawfully, intentionally and knowingly cause the sexual organ of [Cici], a person younger than fourteen years of age, to contact the MOUTH of THE DEFENDANT.

The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Harris County, Texas, ROEL DAVID GONZALEZ, hereafter styled the Defendant, heretofore on or about JANUARY 30, 2009, did then and there


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unlawfully, intentionally and knowingly cause the penetration of the SEXUAL ORGAN of [Cici], hereinafter called the Complainant, a person younger than fourteen years of age, by placing HIS FINGER in the SEXUAL ORGAN of the Complainant.
Later, in closing argument, both Appellant and the State revisited the night
when Appellant struck Mother on the head with a beer bottle. In his closing
argument in the guilt phase, Appellant suggested that the girls had lied about the
sexual abuse in order to protect their Mother from Appellant. During the
punishment phase, after recounting Appellant’s mistreatment of his ex-wife, the
State suggested he continued the same pattern of behavior with Mother because
Appellant “bash[ed] her head in with a beer bottle.” Appellant objected that the
State’s statement was outside the evidence because the bottle was “thrown.” The
trial court overruled the objection and instructed the jury to rely on testimony as
evidence.
Also in closing argument for the punishment phase, Appellant and the State
also discussed what impact the length of jury deliberation should have on
Appellant’s punishment. Appellant suggested that the jurors could use any
residual doubts they had when they considered Appellant’s punishment. The State
responded in their argument “Don’t let anyone tell you or make you feel bad about
your verdict. That’s not right.” Appellant objected. The trial court sustained the
objection and instructed the jury to disregard the last comment. Appellant then
asked for, but the trial court denied, a request for mistrial.


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The jury found Appellant guilty of aggravated sexual assault of and
indecency with a child and assessed punishment at twenty years’ confinement on
the first offense and five years’ confinement on the second offense. The trial court
entered judgment on the jury’s verdict and punishment sentence. Appellant now
brings this appeal.
Sufficiency of the Evidence
In his first and second issues, Appellant argues that the evidence is
insufficient to support the offense of aggravated sexual assault of a child or of
indecency with a child because enough factual inconsistencies proliferate the
record to prevent a rationale juror from finding Appellant guilty beyond a
reasonable doubt. Appellant contends that the children were motivated by anger,
after Appellant bloodied their mother with a beer bottle. The State asserts that
Appellant is asking this Court to re-weigh the evidence, which is the jury’s
responsibility. Instead, the State argues that the children’s testimony combined
with the forensic interview videos and medical records was sufficient for the jury
to find Appellant placed his mouth on Cici’s sexual organ and two fingers into
Cici’s sexual organ while she was younger than fourteen years of age.
In evaluating the sufficiency of the evidence, we review all the evidence in
the light most favorable to the trial court’s judgment to determine whether any
rational jury could have found the essential elements of the offense beyond a


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reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)
(citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979));
Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d);
but see Johnson v. State, 419 S.W.3d 665, 671 n.2 (Tex.App.—Houston [1st Dist.]
2013, pet. ref’d) (suggesting the Court of Criminal appeals should revisit whether
legal and factual sufficiency standards of review are indistinguishable). Evidence
is legally insufficient when the “only proper verdict” is acquittal. Tibbs v. Florida,
457 U.S. 31, 41–42, 102 S. Ct. 2211, 2218 (1982). We examine sufficiency under
the direction of Brooks, while giving deference to the responsibility of the jury “to
fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19, 99 S. Ct. at 2788–89).
We defer to the fact finder’s resolution of conflicting evidence unless the
resolution is not rational. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007).
Jurors are the exclusive judges of the facts, the credibility of the witnesses,
and the weight to be given the witness’s testimony. Penagraph v. State, 623
S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981); Jaggers v. State, 125
S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). And, they may
choose to believe or disbelieve any part of a witness’s testimony. See Davis v.


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State, 177 S.W.3d 355, 358 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
Likewise, “reconciliation of conflicts in the evidence is within the exclusive
province of the jury.” Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)
(citing Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986)).
A person commits the offense of aggravated sexual assault of a child if the
person intentionally or knowingly causes the penetration of the anus or sexual
organ of a child by any means, and the victim is under the age of fourteen. See
TEX. PENAL CODE ANN. § 22.021 (a) (1) (B) (i), (2) (B) (Vernon Supp. 2016). The
uncorroborated testimony of a child victim is alone sufficient to support a
conviction of aggravated sexual assault of the child. See TEX. CODE CRIM. PROC.
ANN. art. 38.07 (Vernon Supp. 2016) (providing that if victim is age seventeen or
younger, requirement that victim inform another person of alleged offense within
one year does not apply); Johnson, 419 S.W.3d at 671–72.
A person commits the offense of indecency with a child if, among other
things, he touches the breast or genitals of someone younger than 17 years of age
with the intent to arouse or gratify the sexual desire of anyone. TEX. PENAL CODE
ANN. § 21.11(a)(1), (c)(1). Touching a child through her clothing is encompassed
by the offense. § 21.11(c)(1). The required intent may be inferred from the
surrounding circumstances. Navarro v. State, 241 S.W.3d 77, 79 (Tex. App.–
Houston [1st Dist.] 2007, pet. ref’d). The uncorroborated testimony of either the


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child or an outcry witness suffices to support a conviction for indecency with a
child. Jones v. State, 428 S.W.3d 163, 169 (Tex. App.–Houston [1st Dist.] 2014,
no pet.).
Here, Cici was nine years old at the time of the offenses. Cici testified that
Appellant pulled her underpants aside to put his mouth and tongue on her genitals.
Cici defined her genitals as the part of her body she uses to go to the bathroom.
Belle testified that on the same night, Appellant tried to unzip her shorts, but she
rolled over, dissuading him. Belle testified that she also saw Appellant move
towards Cici with a flashlight, and then stand over her.
Cici testified that another night, she awoke to Appellant unbuttoning her
shorts and sticking two fingers into her vagina, which she demonstrated during trial
using a Kleenex box. Cici’s testimony that Appellant placed his mouth on and
finger inside her vagina is alone sufficient to support Appellant’s convictions for
aggravated sexual assault of and indecency with a child. See TEX. CODE CRIM.
PROC. ANN. art. 38.07; Jones 428 S.W.3d at 169; Johnson, 419 S.W.3d at 671–72.
Viewing the evidence in the light most favorable to the jury’s verdict, as we
must, we conclude that a rational trier of fact could have found that Appellant
committed the offense of aggravated sexual assault of and indecency with a child,
and we defer to that finding. The jury could resolve any contradictions between
the girls’ live testimony and earlier forensic interviews in favor of the girls’


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account. See Wyatt, 23 S.W.3d at 30. Accordingly, we hold that the evidence is
sufficient to support Appellant’s conviction for aggravated sexual assault of and
indecency with a child.
We overrule Appellant’s issues error one and two.
Constitutionality of Article 39.15
In issue three, Appellant asserts “[t]he trial court erred in denying
Appellant’s motion [for] mistrial for the constitutional challenge to article 39.15 of
the Texas Code of Criminal Procedure.” Appellant argues that his limited access
to the girls’ forensic interviews under of the Texas Code of Criminal Procedure
interfered with his counsel’s and his expert’s preparations, and he was unable to
confront the child witnesses as allowed by the Confrontation Clause and Article I
Section 10 of the Texas Constitution. See U.S. CONST. amends. VI, XIV; TEX.
CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 39.15 (Vernon Supp. 2016).
Appellant asserts he should have been given copies of the videos, not access to
them. The State argues that Article 39.15 is constitutional because Appellant was
able to view the forensic interviews and use the information within them against
the girls when they testified in the trial court. We must, therefore, determine
whether the records were made reasonably available to Appellant, satisfying the
statutory requirements, and then whether the statute violates the Confrontation
Clause.


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A. Reasonable Availability of Forensic Records under Article 39.15
Article 39.15 of the Texas Code of Criminal Procedure provides that a court
should make a child victim’s forensic interviews reasonably available for
inspection, but should not allow the defendant’s team to copy them:
(a) In the manner provided by this article, a court shall allow discovery under Article 39.14 of property or material: . . . . (3) that is described by Section 2 or 5, Article 38.071, of this code. (b) Property or material described by Subsection (a) must remain in the care, custody, or control of the court or the state as provided by Article 38.45. (c) A court shall deny any request by a defendant to copy, photograph, duplicate, or otherwise reproduce any property or material described by Subsection (a), provided that the state makes the property or material reasonably available to the defendant. (d) For purposes of Subsection (c), property or material is considered to be reasonably available to the defendant if, at a facility under the control of the state, the state provides ample opportunity for the inspection, viewing, and examination of the property or material by the defendant, the defendant’s attorney, and any individual the defendant seeks to qualify to provide expert testimony at trial.
TEX. CODE CRIM. PROC. ANN. arts. 39.15 & 38.071 (Vernon Supp. 2016).
The State provided Brady notices for the forensic interviews to Appellant.
See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). Accordingly, three
times prior to trial, Appellant filed motions requesting production of the forensic
interviews of Belle and Cici, which the State opposed because it was statutorily
prevented from producing the videos:


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1. In Texas, defendants have no general right of discovery as governed by Article 39.14 of the Texas Code of Criminal Procedure. 2. The Texas legislature amended both Article 39.15 of the Code of Criminal Procedure and § 264.408 of the Family Code to prohibit a court from ordering that videotaped interview of a child made at a child advocacy center (CAC) be copied or otherwise reproduced for a defendant, as long as it is made available to the defendant as required under Article 39.15(d) of the Code of Criminal Procedure.
See TEX. CODE CRIM. PROC. ANN. art. 39.15, § (c); TEX. FAM. CODE ANN. §
264.408 (Vernon Supp. 2016) (“(d-1) . . . A court shall deny any request by a
defendant to copy, photograph, duplicate, or otherwise reproduce a video recording
of an interview described by Subsection (d),” including child forensic videos). The
trial court partially granted the motions, allowing for access to the interviews but
not to copies.
During a break in Belle’s trial testimony, Appellant moved for the State to
provide copies of all three forensic interviews as sealed exhibits. He asserted that
Article 39.15, as applied to his case, violated his due process and confrontation
rights because any witness impeachment using the information on the tapes
required that he play back part of the tape recording or a transcript. He also asked
for a mistrial because it “hinder[ed] the defendant’s right to prepare and confront
witnesses.” Appellant’s counsel conceded to watching the forensic interview
videos multiple times, including three times over the weekend before trial.
Appellant’s expert also reviewed all three interviews prior to trial. The trial court


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denied the motions, but ordered the forensic interviews sealed and placed in the
record for appellate purposes. Appellant proceeded to cross-examine Belle and
Cici, pointing out inconsistencies between their present testimony and the forensic
interviews.
During its rebuttal case, the State called the forensic interviewer, and, after
Appellant waived his objections, all three interviews were admitted by the trial
court and published to the jury.
Our sister courts, considering reasonable availability in the light of the Sixth
Amendment, have consistently held that making available forensic interviews for
defense counsel constitutes making the records reasonably available. In In Matter
of W.E.J., the Waco Court of Appeals held that a trial court did not abuse its
discretion when it interpreted Article 39.15 to bar the creation of a translated
transcript of children’s forensic interviews to play before the jury. 494 S.W.3d
178, 180 (Tex. App.—Waco 2015, pet. denied). Instead, the forensic interviews
were reasonably available when: “appellant’s counsel viewed the video of the
forensic interviews and used his own translator to transcribe and translate word for
word the interviews of the child victims from Spanish to English.” See id.
Similarly, in Flores v. State, the videos were reasonably available when “he
received full access to the video interview and did in fact inspect the video and was
able to refer to specific times and statements on the video during his trial


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questioning.” No. 04-14-00915-CR, 2015 WL 5730263, at *3 (Tex. App.—San
Antonio Sept. 30, 2015, pet. ref’d) (mem. op., not designated for publication).
Finally, in Loveday v. State, the court said that having “ample opportunity to
review the recording before it was shown to the jury” was reasonable availability,
but rejected Appellant’s request for copies of the recording or to view the
recording outside a “State[-]controlled facility.” No. 09-12-00240-CR, 2013 WL
5874280, at *5–6 (Tex. App.—Beaumont Oct. 30, 2013, pet. ref’d) (mem. op., not
designated for publication).
One sister court has held that the right to access the videos is statutorily
limited to defense counsel and an expert, and a court reporter cannot do so on
behalf of a defendant. In re Ligon, No. 09-14-00262-CR, 2014 WL 2902324, at
*1–2 (Tex. App.—Beaumont June 26, 2014, no pet.) (mem. op., per curiam, not
designated for publication) (granting mandamus to prevent court reporter from
transcribing child’s video despite Appellant’s argument that transcription is not
reproduction).
Prior to trial and during trial, in the instant case, Appellant moved for copies
of all three forensic interviews, but the trial court only granted access to them and
did not provide copies. His counsel reviewed all three forensic interview videos,
including three times over one weekend break, and used inconsistencies against


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Belle and Cici during their trial testimony. Appellant’s expert also reviewed the
videos.
We conclude that access was reasonable under Article 39.15. However,
Appellant does not argue that his access was unreasonable as defined by the
statute, but that the limitation that prevented him from copying the forensic
interviews was unconstitutional. See art. 39.15. We therefore turn to whether the
limitation violated the Confrontation Clause in the Constitution of the United
States and, therefore, whether Article 39.15 places an unconstitutional limitation
on a defendant’s access to evidence needed for cross-examination.
B. Constitutionality of Article 39.15 as Applied Under the Confrontation Clause
The Confrontation Clause of the Sixth Amendment guarantees an accused
the right “to be confronted with the witnesses against him” by having an
opportunity to cross-examine the witnesses. U.S. CONST. amends. VI, XIV; see
also Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 1435 (1986);
Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000). While admitting that
the goal of the Confrontation Clause is reliability of evidence, “[i]t commands, not
that evidence be reliable, but that reliability be assessed in a particular manner: by
testing in the crucible of cross-examination.” Crawford v. Washington, 541 U.S.
36, 61, 124 S. Ct. 1354, 1370 (2004); see also Henley v. State, 493 S.W.3d 77, 95
(Tex. Crim. App. 2016) (summarizing the interaction of the Confrontation Clause


22
and the Texas Rules of Evidence) (upholding Lopez v. State, 18 S.W.3d 220, 225
(Tex. Crim. App. 2000).4
“[S]tate and federal rulemakers have broad latitude under the Constitution to
establish rules excluding evidence from criminal trials.” Holmes v. South
Carolina, 547 U.S. 319, 324, 126 S. Ct. 1727, 1731 (2006). Also, “[t]he trial court
maintains broad discretion to impose reasonable limits on cross-examination to
avoid harassment, prejudice, confusion of the issues, endangering the witness, and
the injection of cumulative or collateral evidence.” Henley v. State, 493 S.W.3d at
95; TEX. R. EVID. 101(d); Holmes, 547 U.S. at 326, 126 S. Ct. at 1732.
The evidence rules should not, however, infringe upon defendant’s ability to
present a complete defense. Holmes, 547 U.S. at 324, 126 S. Ct. at 1731; see Smith
v. State, 236 S.W.3d 282, 292 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d);
see e.g., Coronado v. State, 351 S.W.3d 315, 324–31 (Tex. Crim. App. 2011)
(holding admission of child’s written interrogatories in lieu of live testimony,
under TEX. CODE CRIM. PROC. ANN. art. 38.071 §2, was unconstitutional); compare
with Thomas v. State, 837 S.W.2d 106, 112–14 (Tex. Crim. App. 1992) (holding in
camera review by trial court to determine whether crime stoppers information
4 Parties do not contest the testimonial nature of the forensic examinations. See Woodall v. State, 336 S.W.3d 634, 642 (Tex. Crim. App. 2011) (holding that, in reviewing Confrontation Clause challenge, appellate courts must “first determine whether the Confrontation Clause is implicated.”).


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contained Brady information would meet the balance of defendant’s constitutional
rights against the State’s interest in fostering law enforcement).
Appellant, argues that his inability to copy the forensic interviews prevented
his counsel and expert from preparing for confrontation of the witnesses, and
therefore Article 39.15 is unconstitutional. He cites Davis v. Alaska for the
proposition that confidentiality must give way to a defendant’s right to cross
examination. 415 U.S. 308, 320, 94 S. Ct. 1105, 1112 (1974).
In Davis, the Supreme Court of the United States faced the question of
whether a defendant’s rights under the Sixth Amendment’s Confrontation Clause
could trump a state’s interest in keeping juvenile records confidential. Id. at 309,
94 S. Ct. at 1107. The Supreme Court held that, under the specific facts presented,
Davis’s confrontation rights would be violated if he could not show the potential
bias of the juvenile witness against him. Id. at 319, 94 S. Ct. at 1112. Specifically
where the juvenile witness, Green, was on probation for burglarizing two cabins,
Green had the potential for bias when an emptied safe was found near his family’s
property. Id. at 310–11, 317–18, 94 S. Ct. at 1107–08, 1111.
The Court found Green to be “a crucial witness for the prosecution” because
he testified that he saw Davis near where the safe was discovered “with something
like a crowbar,” and he identified Davis in a photographic lineup and at trial. The
Court stated:


24
Richard Green was a crucial witness for the prosecution. He testified at trial that while on an errand for his mother he confronted two men standing beside a late-model metallic blue Chevrolet, parked on a road near his family’s house. The man standing at the rear of the car spoke to Green asking if Green lived nearby and if his father was home. Green offered the men help, but his offer was rejected. On his return from the errand Green again passed the two men and he saw the man with whom he had had the conversation standing at the rear of the car with ‘something like a crowbar’ in his hands. Green identified petitioner at the trial as the man with the ‘crowbar.’ The safe was discovered later that afternoon at the point, according to Green, where the Chevrolet had been parked.
Id. at 310, 94 S. Ct. at 1107. When he was brought in to identify the individuals on
a six person photo-array, Green identified Davis “within 30 seconds to a minute.”
Id. at 309–10, 94 S. Ct. at 1107.
Before Green testified, the State sought a protective order to prevent
reference to Green’s juvenile record in cross-examination. Id. at 310, 94 S. Ct. at
1107. Davis opposed the motion because he wanted to argue that Green might
have been pressured to make his identifications under the fear of possible
probation revocation. Id. at 311, 94 S. Ct. at 1108. The trial court granted the
State’s motion. Id.
On cross-examination, “counsel for petitioner did his best to expose Green’s
state of mind at the time Green discovered that a stolen safe had been discovered
near his home.” Id. at 312, 94 S. Ct. at 1108. When asked whether he was worried
about police suspicions, Green answered, “No,” but he “did admit that it crossed
his mind that the police might have thought he had something to do with the


25
crime.” Id. The Alaskan Supreme Court affirmed Davis’ conviction, suggesting
that this cross-examination was sufficient to resolve any bias or motive issue. Id.
at 314–15, 94 S. Ct. at 1109–10.
The Supreme Court of the United States did not agree that the testimony
adequately developed the issue of bias. Id. at 318, 94 S. Ct. at 1111. It suggested
that Green’s bold ‘No’ would not have been given but for the protective order and
that the police probably did question Green concerning his prior burglaries prior to
Green’s identification of Davis. Id. at 314, 94 S. Ct. at 1109. “While counsel was
permitted to ask Green whether he was biased, counsel was unable to make a
record from which to argue why Green might have been biased or otherwise lacked
that degree of impartiality expected of a witness at trial.” Id. at 318, 94 S. Ct. at
1111. The jury might have thought the inquiry was a “baseless line of attack” on a
“blameless witness” or repetitive cross-examination. Id. Therefore, the jury
needed access to the protected facts to draw “inferences relating to the reliability of
the witness.” Id.
Thus, the Court held that the State’s interest in protecting the anonymity of
juvenile offenders was outweighed by Davis’ right of cross-examination, stating,
Whatever temporary embarrassment might result to Green or his family by disclosure of his juvenile record—if the prosecution insisted on using him to make its case—is outweighed by petitioner’s right to probe into the influence of possible bias in the testimony of a crucial identification witness.


26
Id. at 319, 94 S. Ct. at 1112.
While the Texas Court of Criminal Appeals has addressed the Davis holding
in earlier cases, in Carmona v. State, it sought to clarify that Davis’s holding was
limited by its facts. 698 S.W.2d 100, 104 (Tex. Crim. App. 1985). “The opinion
in Davis is replete with references to ‘on the facts of this case,’ ‘in this setting,’
and other such references.” Id. Davis’s holding is distinguishable from other cases
in which cross-examination occurred because in Davis “the defendant was
completely deprived of the opportunity to develop his theory of the witness’ bias or
motive for testifying.” Id. The Court of Criminal Appeals held in Carmona that
Davis was not a per se rule mandating the reversal of a conviction limiting cross
examination into juvenile offenses, but a rationale that criminal defendants be
allowed an effective cross-examination. Id. at 103–04.
The Court also distinguished Davis because “the bias and prejudice of the
witness [was] so patently obvious” in Carmona. Id. at 105. The cross
examination of the juvenile witness, Garcia, took over a day and a half by four
defense attorneys. Id. His testimony revealed that he received “great leniency”
and a grant of immunity from the State in exchange for favorable testimony; a
“chilling picture” of drug and alcohol abuse along with prior crimes since the age
of four; and to a prior aggravated perjury before a Travis County grand jury, to
which he was not immune. Id. In that case, the defendant, along with Garcia and


27
other co-defendants, were accused of abducting, raping, and killing a woman. Id.
at 102. “In sum, Garcia’s testimony vividly portrayed the life of a habitual
juvenile miscreant.” Id. at 104. Thus, the Carmona court held that a trial court can
prohibit questions about an unrelated pending charge when the defendant has
otherwise been afforded an effective cross-examination and the bias and prejudice
of the witness is patently obvious. Id. at 104–05.
The Court of Criminal Appeals again clarified Davis in Irby v. State to mean
that a defendant must show the logical connection between the witnesses’
testimony and the witnesses’ probationary status. 327 S.W.3d 138, 146, 154 (Tex.
Crim. App. 2010). In Irby, Irby wanted to cross-examine the testifying
complainant, W.P., about the fact the W.P. was on deferred-adjudication probation
for aggravated assault with a deadly weapon to show bias and motive, but the trial
court did not allow the impeachment. Id. at 140. Irby was charged with sexual
assault of the minor W.P. Id. Specifically, Irby cited Davis and “explained that,
on the day that W.P. told the police about the sexual encounters, W.P. believed that
he could get into trouble because William had planned to rob [Irby]” to retrieve
W.P.’s money. Id. at 142, 153. The trial court disallowed the proposed cross
examination because it held the probation and sexual assault matters were
completely separate. Id. at 140. The Dallas Court of Appeals upheld the trial
court’s ruling. Id. at 144–45. The Court of Criminal Appeals agreed with the trial


28
court’s holding that the defendant failed to show the logical connection between
the complainant’s testimony and the complainant’s probationary status. Id. at 154.
Factually, W.P. had already told other people of the sexual encounters, and the
robbery had already been foiled before W.P. spoke to the police. Id. As the court
explained, Irby “fails to suggest how William’s conduct would be attributable to
W.P. or how a false story of W.P.’s consensual sexual encounters would exonerate
or ameliorate the conduct of either of them.” Id.
The Court of Criminal Appeals pointed out that the Supreme Court of the
United States had held that Davis should be allowed to cross-examine the juvenile
witness on probation because the State could leverage the juvenile’s probationary
status, raising the questions of bias and motivation in the witness, but that was not
always the case. Id. at 146. It stated,
[Green] may have felt that the police would suspect him of the burglary both because he had a prior burglary adjudication and because the emptied safe was found on his family’s property. Based upon these particular facts, [Green] had a possible motive to divert suspicion from himself to another[, such as Davis]. Further, the police might also have brought undue pressure upon [Green] to make an identification of someone—anyone—because he was in “a vulnerable relationship” by virtue of being on probation for burglary, a fact that the investigating officers may also have known and used in questioning him.
Id. at 146.


29
The Court of Criminal Appeals went on to explain that Davis is not “a
blunderbuss,” but a “rapier” allowing for admissible evidence to impeach on bias
and motive, stating:
In sum, Davis v. Alaska is not a blunderbuss that decimates all other evidentiary statutes, rules, and relevance requirements in matters of witness impeachment. It is a rapier that targets only a specific mode of impeachment—bias and motive—when the cross-examiner can show a logical connection between the evidence suggesting bias or motive and the witness’s testimony.
Id. at 152. Thus, Davis addresses the admissibility of testimony when the
questioner can show a logical connection between the testimony and the witness
bias, not the access a defendant must have to impeachment evidence in general in
order to prepare for cross-examination. See Davis, 415 U.S. at 320, 94 S. Ct. at
1112. The Irby Court held that Davis did not apply in that case because a mere
showing that the witness was vulnerable to the State only through his probationary
status was insufficient to show the witness harbored bias in favor of the State.
Irby, 327 S.W.3d at 154. Thus, the trial court did not abuse its discretion in
excluding the impeachment evidence because it was irrelevant. Id.
Like Davis, neither Carmona nor Irby presents the issue before us in this
case—whether access to evidence without being afforded the opportunity to copy it
is sufficient to allow for a defendant to prepare for cross-examination. By contrast
we find that In Matter of W.E.J. is similar to this case. 494 S.W.3d at 178. In In
Matter of W.E.J., the defendant argued that Davis allowed for transcription of


30
children’s forensic interviews under the Confrontation Clause. Id. at 180. The
Waco Court of Appeals held, like our present case, that 39.15 did not prevent
defense counsel from confronting the juvenile accusers because counsel had
viewed the forensic interviews, had them translated, and cross-examined the
victims about the interviews. Id. Therefore, the Waco Court held that Article
39.15 did not damage the defendant’s “right to confront and cross-examine
witnesses to the degree shown in Davis.” Id. We agree with the reasoning of the
Waco Court of Appeals, and we find it applicable here.
Appellant argues his limited access interfered with his trial preparation, but,
unlike Davis, we have already shown that, in fact, his counsel was not impeded
from using inconsistencies in the forensic interviews in his impeachment of the
trial testimony of Belle and Cici because Article 39.15 did not prevent Appellant
from confronting these juvenile accusers regarding their motivation or bias in
testifying. See generally Davis, 415 U.S. at 320, 94 S. Ct. at 1112; Irby, 327
S.W.3d at 146, 154. Also, like Carmona, by bringing the inconsistencies in the
girls’ testimony and the change in the girls’ behavior towards Appellant following
the beer bottle incident to the jury’s attention, Appellant provided the jury with
sufficient evidence to assess any bias of the girls against Appellant. Carmona, 698
S.W.2d at 104–05. We conclude that Davis does not support Appellant’s
argument.


31
We conclude that Appellant has not shown that Article 39.15 denied
Appellant access to information necessary to allow him to confront the juvenile
witnesses. Therefore, he has not shown that Article 39.15 is unconstitutional
because it denies defense attorneys the evidence they need to confront juvenile
witnesses for their possible bias or motive.
We overrule his third issue.
Improper Jury Argument
In issues four and five, Appellant argues that the trial court erred by failing
to grant a mistrial in light of the State’s improper jury argument.
Proper jury argument generally must occupy one of the following areas: (1)
a summation of the evidence presented at trial; (2) a reasonable deduction drawn
from that evidence; (3) an answer to the opposing counsel’s argument; or (4) a plea
for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999);
Acosta v. State, 411 S.W.3d 76, 93 (Tex.App.—Houston [1st Dist.] 2013, no pet.).
In reviewing whether jury argument falls within one of these four areas, we
consider the argument in light of the entire record. Acosta, 411 S.W.3d at 93.
Even if improper, the argument does not constitute reversible error unless, in light
of the record as a whole, the argument is extreme or improper, violates a
mandatory statute, or injects new harmful facts about the accused into the trial


32
proceeding. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000);
Acosta, 411 S.W.3d at 93.
“To preserve error in prosecutorial argument, a defendant must pursue to an
adverse ruling his objections to jury argument.” Archie v. State, 221 S.W.3d 695,
699 (Tex. Crim. App. 2007). When complaining about improper jury argument,
the proper method of pursuing an objection to an adverse ruling is to (1) object, (2)
request an instruction to disregard, and (3) move for a mistrial. TEX. R. APP. P.
33.1; Sawyers v. State, 724 S.W.2d 24, 38 (Tex. Crim. App. 1986), overruled on
other grounds by Watson v. State, 762 S.W.2d 591, 599 (Tex. Crim. App. 1988);
Ashire v. State, 296 S.W.3d 331, 343 (Tex. App.—Houston [1st Dist.] 2009, pet.
ref’d). If the objection is sustained, the failure to request an instruction for the jury
to disregard forfeits appellate review of errors that could have been cured by such
an instruction. See Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004);
Ashire, 296 S.W.3d at 343. If such an instruction could not have “cured” the
objectionable event, a motion for mistrial is the only essential prerequisite to
presenting the complaint on appeal. Young, 137 S.W.3d at 70.
Moreover, a prompt instruction to disregard ordinarily cures any harm from
improper argument. Wesbrook, 29 S.W.3d at 115–16. And, on appeal, we
generally presume the jury followed the trial court’s instructions. See Thrift v.
State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005).


33
We review a trial court’s ruling on a motion for mistrial for an abuse of
discretion. See Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).
A. Injection of Evidence Outside the Record
In issue four, Appellant asserts “[t]he trial court erred when it overruled
Appellant’s objection to the improper argument of the prosecutor injecting
evidence outside the record.” For issue number four, Appellant asserts that the
State’s statement that Appellant “bashed [Mother’s] head in with a beer bottle”
was outside the evidence when the bottle was “thrown.” Appellant asserts that the
trial court’s instruction to the jury was insufficient to cure the comment.
The State contends that “bashing” is a logical inference of the evidence. The
State also asserts that both comments were invited by defense counsel’s argument.
Even if the comments were harmful, the State argues Appellant’s substantive rights
were not affected because the harm was not severe, the trial court’s jury
instructions were curative, and any effect was minimal because the sentence was
on the lower end of the sentencing range.
During the guilt phase of the trial, Mother conceded that she threw a six
pack of beer at Appellant, and then he threw a twelve-pack of beer at her. Alice
also testified that she heard a loud boom, and then saw her mother on the floor next
to broken glass beer bottles, with a bleeding gash on her forehead, and smelling of
beer and blood.


34
During the sentencing phase, the State argued that the jury could consider
Appellant’s violent history because they could consider his character. After
recounting Appellant’s mistreatment of his ex-wife, the State suggested he
continued the same pattern of behavior with Mother because “when she starts
acting up, [he] bash[ed] her head in with a beer bottle.” Appellant objected,
“There’s no evidence he bashed her head with a beer bottle. He threw the beer
bottle after she threw beer cans at him.” The trial court overruled the objection
with an instruction, “Okay. Overruled. The jury—what the attorneys say in
closing arguments is not evidence, and the jury will rely on what the testimony was
presented.” The State continued with its argument that Appellant was a “violent,
violent person.”
On Appeal, Appellant argues that the trial court erred when it overruled
Appellant’s objection to the improper argument of the State because “there was no
evidence that Appellant “bashed [Mother’s] head in with a beer bottle.” Because
Appellant’s objection resulted in an adverse ruling, his objection is preserved
without the necessity of requesting a curative instruction or asking for a mistrial.
See TEX. R. APP. P. 33.1; Sawyers, 724 S.W.2d 38; Young, 137 S.W.3d at 70;
Ashire, 296 S.W.3d at 343.
The trial court, then, immediately offered a curative instruction. And on
appeal, we presume the jury followed the trial court’s instructions, curing any harm


35
from improper argument. Thrift, 176 S.W.3d at 224; Wesbrook, 29 S.W.3d at 115–
16. Moreover, the Texas Penal Code does not distinguish between throwing and
bashing, so while factually distinguishable, the distinction is legally meaningless—
legally Appellant hit Mother with a beer bottle. See TEX. PENAL CODE ANN.
§§ 1.07, 21.01 (Vernon Supp. 2016), 21.02 (Vernon 2016). Because we presume
the jury followed the curative instruction, we must presume an error, if any, was
cured.
We overrule Appellant’s fourth issue.
B. Invited Argument
In issue number five, Appellant argues, “The trial court erred in denying
Appellant’s motion for mistrial based upon the prosecutor’s improper jury
argument.” Appellant asserts that the State struck over the defense counsel’s
shoulders against Appellant, as improper jury argument, when the State said,
“Don’t let anyone tell you or make you feel bad about your verdict. That’s not
right.” For this issue, Appellant asserts that the trial court’s instruction to the jury
was insufficient to cure either comment.
During closing argument at the punishment phase, Appellant suggested that,
because the jurors took ten hours to reach their verdicts, some jurors “had doubts
about whether or not he was guilty of either of these two charges.” Appellant
suggested to the jury “[t]hat residual doubt that you may have had is something


36
you can consider in determining whether you should give him a long time in prison
or a short.” Later in his argument, Appellant reminded the jury to “[t]hink about
the questions you had about whether or not he was guilty.”
The State responded that the jury “took [] a long time to deliberate,” because
“[y]’all have processed days and days of testimony.” The State went on to say,
“Don’t let anyone tell you or make you feel bad about your verdict. That’s not
right.” But Appellant objected, and the trial court sustained the objection.
Appellant requested an instruction, and the trial court instructed to the jury to
disregard the last comment. Appellant then asked for, but the trial court denied, a
request for mistrial. Because Appellant (1) objected, (2) requested an instruction
to disregard, and (3) moved for a mistrial, he has preserved his issue for our
review. See TEX. R. APP. P. 33.1; Sawyers, 724 S.W.2d 38; Ashire, 296 S.W.3d at
343.
The State may argue subjects that would otherwise be improper when
invited to do so by the defendant’s own remarks. Acosta, 411 S.W.3d at 93 (citing
Albiar v. State, 739 S.W.2d 360, 362 (Tex. Crim. App. 1987)). Appellant asserted
that ten hours of deliberations suggested the jury had doubts about the guilty
verdict and revived those feelings within the jury to achieve a lesser punishment.
Appellant invited the State’s argument that the jury need not feel guilty about
taking ten hours because that was part of the jury deliberation process. See


37
Wesbrook, 29 S.W.3d at 115; Albiar, 739 S.W.2d at 362; Acosta, 411 S.W.3d at
93. Even if the argument was not invited, the trial court sustained the objection,
and at Appellant’s request, immediately issued an instruction to disregard the last
comment. We presume the jury follows a curative instruction. Thrift, 176 S.W.3d
at 224; Wesbrook, 29 S.W.3d at 115–16.
Appellant, however, argues that the comment was extreme enough to
overcome the presumption that the jury followed the instruction because the
comment struck over the shoulders of counsel. Specifically, Appellant asserts,
“Striking at a defendant over defense counsel’s shoulders is impermissible, as it
falls outside the generally permissible areas of jury argument,” citing Davis v.
State, in support. 268 S.W.3d 683, 712–13 (Tex. App.—Fort Worth 2008, pet.
ref’d). Striking over counsel’s shoulders involves the State calling defense counsel
a liar or accusing counsel of suborning perjury. Id. (citing Gomez v. State, 704
S.W.2d 770, 772 (Tex. Crim. App. 1985)). However, claiming the defense counsel
is arguing “something ridiculous” is directed at defense counsel’s argument, not at
defense counsel. Id. at 713.
Telling the jury that they shouldn’t feel bad about taking a long time for a
verdict is more akin to calling Appellant’s argument ridiculous than calling his
counsel a liar. See id. Because the State’s comments attacked Appellant’s
arguments, rather than his counsel personally, the argument did not strike over his


38
shoulders. See Acosta, 411 S.W.3d at 93 (stating that State’s comments suggesting
jury not be “fooled” by defense’s “good lawyering” and that argument was “just
words from the defense attorney’s mouth,” attacked defense counsel’s arguments,
not defense counsel personally); Garcia v. State, 126 S.W.3d 921, 925 (Tex. Crim.
App. 2004) (holding that State’s comment that defense was “argu[ing] that
hogwash that you’ve heard” was State’s opinion of defense’s arguments, not an
attack on counsel’s personal integrity). Because the argument did not strike over
the shoulders of counsel, the conduct did not rise to a level sufficient to overcome
the presumption that the jury followed the curative instruction. Thrift, 176 S.W.3d
at 224; Wesbrook, 29 S.W.3d at 115–16. As the instruction was curative, we
conclude the trial court did not abuse its discretion in denying the mistrial. See
Hawkins, 135 S.W.3d at 77.
We overrule Appellant’s fifth issue.

Outcome: