Andrew Castillo v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-23-00193-CR

ANDREW CASTILLO, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 364th District Court
Lubbock County, Texas
Trial Court No. DC-2023-CR-0108, Honorable William R. Eichman, II, Presiding

August 27, 2024
MEMORANDUM OPINION
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.

Following a plea of not guilty, Appellant, Andrew Castillo, was convicted by a jury

of aggravated sexual assault of a child.1 By his six issues, he contends the trial court

erred by: (1) setting a competency hearing not authorized by statute; (2) granting the

State’s late-filed motion for redetermination when it lacked jurisdiction; (3) shifting the

burden to him to prove continuing incompetency; (4) denying his motion to suppress his

1 TEX. PENAL CODE ANN. § 22.021(a)(2)(B).
confession; (5) failing to exclude certain exhibits which were not relevant and prejudicial;

and (6) improperly permitting an inadmissible outcry statement. We affirm.

BACKGROUND

One evening, Appellant and the mother of his child went to sleep in their bedroom.

The mother awoke in the middle of the night to find Appellant not in the couple’s bed. She

frantically searched the home and found Appellant naked in the living room next to their

three year old daughter. Mother grabbed the child and asked her what happened, and

the child pointed to the car in the driveway and said, “Daddy touched my butt.” Appellant

was adamant nothing happened and left the house, and mother asked her ex-boyfriend

to stay the rest of the night to keep Appellant away. Upon questioning her daughter again,

the child said to her mother, “Daddy hurt my butt.” The following day, mother reported

the incident to the police.2 The daughter was examined by a sexual assault nurse

examiner who confirmed she had suffered an injury to her anus.3 After the exam, mother

brought her daughter to the Child Assessment Center of the South Plains (“CAC”) for a

forensic interview, but the interview was rescheduled to the following day due to the child

being emotional and uncooperative. The police also investigated the child’s allegation.

During the investigation, detectives discovered text messages sent by Appellant to

mother admitting he assaulted his daughter. Appellant was arrested and charged with

sexual assault of a child.

2 Mother apparently waited out of concern about her children—the daughter and her three older

brothers—being taken away by CPS. Apparently, this occurred previously with her children.

3 The nurse examiner could not determine the cause of the injury.

2
In 2018, after his arrest, Appellant was declared incompetent to stand trial and

committed to a long-term treatment facility. In 2021, the forensic psychologist acting as

the head of the facility, Dr. Mitchell, filed a report stating Appellant had regained his

competence. After a hearing and examining the Appellant, the trial court determined he

was still incompetent to stand trial and signed an order continuing the commitment. Less

than 91 days later, Dr. Mitchell filed another request for redetermination without any

additional evidence of competency, and the hearing on the motion, which began in late

2021 was continued to March 2022. During the pendency of Dr. Mitchell’s motion, the

commitment order expired. The trial court denied the motion, and a month later the State

filed another motion for redetermination of Appellant’s competency. The trial court held

another competency hearing based on the State’s motion and found Appellant competent

to stand trial. At trial, a jury found him guilty and sentenced him to life imprisonment and

a fine of $10,000. This appeal followed.

APPLICABLE LAW

“As a matter of constitutional due process, a criminal defendant who is incompetent

may not stand trial.” Bluntson v. State, No. AP-77,067, 2021 Tex. Crim. App. Unpub.

LEXIS 349, at *8 (Tex. Crim. App. June 30, 2021) (quoting Boyett v. State, 545 S.W.3d

556, 563 (Tex. Crim. App. 2018)). “Due process also mandates state procedures that are

adequate to assure that incompetent defendants are not put to trial.” Bluntson, 2021 Tex.

Crim. App. Unpub. LEXIS 349, at *8 (quoting Turner v. State, 422 S.W.3d 676, 689 (Tex.

Crim. App. 2013)). The procedures governing determination of competency of a

defendant to stand trial are embodied in chapter 46B of the Texas Code of Criminal

Procedure. TEX. CODE CRIM. PROC. ANN. arts. 46B.001–46B.171.

3
The defendant is presumed competent to stand trial unless proved to be

incompetent by a preponderance of the evidence. Art. 46B.003(b). When the defendant

is charged with a felony, if after hearing evidence a trial court determines the defendant

is not competent, the court is required to order the defendant to a restoration competency

program. Art. 46B.071(a). If, however, the trial court determines the defendant is not

only incompetent but is unlikely to be restored to competency in the foreseeable future, it

is required to hold a hearing to determine if the defendant should be committed to a

mental health facility under the Texas Health & Safety Code. Arts. 46B.071(b), 46B.102;

TEX. HEALTH & SAFETY CODE ANN. §§ 574.001–574.203.

An order of commitment to a mental health facility may be extended for a maximum

of twelve months. TEX. HEALTH & SAFETY CODE ANN. § 574.035(h). After the expiration of

the court’s order and subject to disapproval by the trial court or the State’s attorney, if the

mental health facility wishes to release the defendant, it must notify the trial court of the

release within fourteen days and whether the defendant has attained competency to

stand trial. § 574.085; TEX. CODE CRIM. PROC. ANN. art. 46B.107(a)–(c). Upon receiving

notice from the facility, or on motion of the State’s attorney or its own motion, the trial

court is required to hold a hearing to determine if the defendant should be released under

the criteria prescribed in the Health & Safety Code. TEX. CODE CRIM. PROC. ANN. art.

46B.107(d); TEX. HEALTH & SAFETY CODE ANN. § 574.035(a). The trial court must find by

clear and convincing evidence the defendant has not been restored to competence.

During the commitment, the trial court may, at any time, on its own motion or on

the motion of the facility head or State’s attorneys, hold a hearing to determine if the

defendant has been restored to competency. TEX. CODE CRIM. PROC. ANN. art. 46B.108.

4
If the facility head provides an opinion the defendant has regained competency, the

defendant bears the burden of proving by preponderance his continuing incompetency.

Art. 46B.113(d). If no opinion has been provided, it is the State’s burden to prove the

defendant’s competency by a preponderance. Art. 46B.113(e). If the trial court has

entered a determination of incompetency within 91 days of the filing of the motion, the

trial court may hold a hearing only if it “first finds reason to believe the defendant’s

condition has materially changed since the prior determination that the defendant was not

restored to competency.” Art. 46B.115(b). If the defendant is found competent, the trial

on the criminal charge may proceed. Art. 46B.116.

STANDARD OF REVIEW

A trial judge’s finding regarding competency is reviewed under an abuse of

discretion standard. Mason v. State, No. 07-14-00345-CR, 2015 Tex. App. LEXIS 12515,

at *10 (Tex. App.—Amarillo Dec. 9, 2015, pet. ref’d) (mem. op., not designated for

publication) (citing Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999)); see

also Luna v. State, 268 S.W.3d 594, 600 (Tex. Crim. App. 2008). An appellate court

views the evidence in the light most favorable to the trial court’s ruling, considering only

those arguments before the court at the time of the ruling. Id. A trial court “abuses its

discretion when it acts without reference to any guiding rules and principles or acts

arbitrarily or unreasonably.” Gonzalez v. State, 616 S.W.3d 585, 594 (Tex. Crim. App.

2020) (citing Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019); Martinez v.

State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010)). A trial court does not abuse its

discretion unless “its decision falls outside the zone of reasonable disagreement.”

Aceituno-Urbina v. State, No. 07-22-00205-CR, 2023 Tex. App. LEXIS 4262, at *2 (Tex.

5
App.—Amarillo June 16, 2023, pet. filed) (mem. op., not designated for publication) (citing

Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016)). We will not reverse the

trial court’s decision unless we find that the ruling lies outside the zone of reasonable

disagreement. Id.

We review a trial court’s ruling on the admissibility of evidence, including a motion

to suppress evidence, for an abuse of discretion. Ballard v. State, No. 07-16-00333-CR,

2017 Tex. App. LEXIS 11719, at *6 (Tex. App.—Amarillo Dec. 15, 2017, pet. ref’d) (mem.

op., not designated for publication) (citing see Carrasco v. State, 154 S.W.3d 127, 129

(Tex. Crim. App. 2005)). See also supra. (abuse of discretion only when decision is

outside the “zone of reasonable disagreement”). We will uphold the trial court’s ruling if

it is reasonably supported by the record and is correct under any theory of law applicable

to the case. Id. We must review the trial court’s ruling in light of what was before the trial

court at the time the ruling was made. Id.

ANALYSIS

ISSUES ONE AND TWO—REDETERMINATION OF COMPETENCY

Appellant’s first issue challenges the trial court’s authority to hold a hearing to

redetermine his competency after being found incompetent. His second issue asserts

the trial court could not properly consider the State’s motion for redetermination of his

competency because it was filed “untimely.” Both complaints focus on the fact the State

filed its motion for redetermination of his competency after the trial court’s commitment

order expired. According to Appellant, once the commitment order expired, the trial court

was procedurally deprived of the ability to make a redetermination of his competency

6
under article 46B.108. Because his last status was determined to be “not competent, not

restorable”—a requirement for long-term commitment—he claims the court had only one

course of action available: to conduct a new competency hearing under articles 46B.004

and 46B.071. He concludes the trial court was not statutorily authorized to redetermine

his competency once the commitment order expired, and its ruling on the State’s motion

constituted an abuse of discretion. We disagree.

When interpreting a statute, we look to the literal text for its meaning. Cook v.

State, 644 S.W.3d 763, 768–69 (Tex. App.—Amarillo 2022, no pet.) (citing Martin v. State,

635 S.W.3d 672, 677–78 (Tex. Crim. App. 2021)). The plain meaning of the statute

controls unless the language is ambiguous or its application “would lead to absurd

consequences that the Legislature could not possibly have intended.” Id. “To determine

plain meaning, we read the statute in context and give effect to each word, phrase, clause,

and sentence if reasonably possible, and construe them according to any applicable

technical definitions and otherwise according to the rules of grammar and common

usage.” Cook, 644 S.W.3d at 768–69 (citing Lopez v. State, 600 S.W.3d 43, 45 (Tex.

Crim. App. 2020)).

If the trial court determines the defendant is incompetent to stand trial and is not

likely to regain competence in the foreseeable future, it can commit the defendant to a

mental health facility. TEX. CODE CRIM. PROC. ANN. arts. 46B.071(b)(1); 46B.084(e). After

it orders the defendant committed to a mental health facility, the trial court retains broad

statutory discretion to redetermine his competency:

If criminal charges against a defendant found incompetent to stand trial have
not been dismissed, the trial court at any time may determine whether the
defendant has been restored to competency.
7
Art. 46B.108(a) (emphasis added).

The determination may be made at the request of the State or on the trial court’s own

motion. Id. Appellant does not dispute the meaning of the terms “at any time,” but he

argues the case was no longer under subchapter E, and therefore the trial court lost its

jurisdiction to hold a hearing for redetermination.

Appellant was initially ordered to a restoration program for 120 days, and, upon his

return to court, the trial court ordered his commitment for a period of twelve months under

article 46B.084(e). Appellant agrees, had the State brought forth its motion any time

before the expiration of the order, he would not be complaining about it on appeal.

However, once the order expired, he argues a procedural gap occurs in chapter 46B

because there is no express language addressing this specific scenario. The lack of

express procedural direction, Appellant urges, left the trial court with no choice but to start

over under article 46B.071, and should have ordered him to either a restoration program

or conducted a new long-term commitment hearing under subchapter E. Art. 46B.071

a)(2), (b)(1).

It is the determination of competency by the trial court which triggers the various

procedural paths under chapter 46B, including the subchapter E procedures. Once the

trial court determined Appellant was incompetent and unlikely to attain competency within

the foreseeable future, i.e., “not competent, not restorable,” the trial court was required to

proceed under subchapter E. See arts. 46B.071(b)(1); 46B.084(e). Once under

subchapter E, the court had the power to redetermine competency “at any time.” Art.

46B.108(a). Despite the expiration of the commitment order, the trial court’s

determination Appellant was “not competent, not restorable” remained, and the trial court
8
was still required to proceed under subchapter E. See art. 46B.101.4 Because the trial

court was required to continue under subchapter E, it retained the power to redetermine

competency at any time, including after the expiration of the commitment order. Id.5

We cannot say the trial court’s ruling on the State’s motion for redetermination was

outside the zone of reasonable disagreement. The trial court did not abuse its discretion

in holding a hearing to redetermine Appellant’s competency under article 46B.108. We

overrule Appellant’s first and second issues.

ISSUE THREE—BURDEN TO PROVE INCOMPETENCE

By his third issue, Appellant complains the trial court applied the wrong burden of

proof during the hearing to redetermine his competency. He contends Dr. Mitchell did not

provide a valid opinion of his return to competency, and therefore the burden to prove

incompetency remained with the State.

Under article 46B.113 of the Code of Criminal Procedure, if the head of the facility

to which the defendant is committed provides an opinion the defendant has regained

competency, the defendant bears the burden of proving by preponderance his continuing

incompetency. Art. 46B.113(d). If no opinion has been provided, it is the State’s burden

to prove the defendant’s competency by a preponderance. Art. 46B.113(e). In the State’s

motion for redetermination, it attached a letter and examination previously filed in August

4 “This subchapter [E] applies to a defendant against whom a court is required to proceed according

to [a]rticle 46B.084(e) or according to the court’s appropriate determination under [a]rticle 46B.071.”

5 Alternatively, Appellant suggests the trial court was free to “start over” with the initial restoration

period, but the statute prohibits the trial court from ordering more than one initial period of restoration and
one extension in connection with the same offense, and “any subsequent court orders for treatment must
be issued under [s]ubchapter E or F.” Art. 46B.085(a), (b). Thus, the trial court had no discretion to begin
the competency process anew and was bound to continue to proceed under the subchapter E procedures.
9
2021 by Dr. Mitchell requesting redetermination based upon his opinion Appellant had

regained competency. Appellant urges the trial court erred in considering the letter

because the trial court previously denied the request for redetermination by Dr. Mitchell

based upon the same August 2021 evaluation. Particularly, the trial court denied Dr.

Mitchell’s request because the evaluation was submitted within 91 days of a previous

request for redetermination and did not allege any material change in the condition of

Appellant. See art. 46B.115(a), (b). The State nonetheless argues Dr. Mitchell’s opinion

of competency may still be used for its subsequent motion for redetermination because

chapter 42B does not provide for a date for when the opinion of the facility head must be

provided before the trial court can hold a hearing on redetermination. See art. 46B.113(d),

(e).

Over eight months passed since the facility’s competency evaluation and the

submission of the redetermination motion by the State. With a defendant whose mental

state is vacillating between competence and incompetence, use of a stale opinion to shift

the burden of persuasion seems to be a dubious proposition. Nonetheless, without

deciding the issue, the State proved Appellant’s competency by a preponderance of the

evidence. At the hearing on the State’s motion for redetermination, the only evidence

admitted was the testimony of Dr. Mitchell and Appellant’s medical records from the

facility. Dr. Mitchell opined Appellant had regained competency to stand trial, and the

medical records did not contradict Mitchell’s opinion. Without any other evidence for the

trial court to consider, the State proved Appellant’s competency under a preponderance

standard. Therefore, even if the trial court erred in shifting the burden of persuasion, the

error was harmless and did not affect the outcome of the hearing. TEX. R. APP. P. 44.2.

10
Appellant’s third issue is overruled.

ISSUE FOUR—MOTION TO SUPPRESS

The fourth issue raised by Appellant is the trial court erred by denying his motion

to suppress his confession. During his interrogation after his arrest, detectives read

Miranda warnings and Appellant responded he understood his rights and appears to have

voluntarily spoken with them. Towards the end of the interrogation, however, the

detectives asked whether Appellant had any disabilities. He responded he is deaf and

suffered from memory loss due to a childhood car accident. The interviewing detective

admitted she was not comfortable in continuing and terminated the interview. Appellant

now argues the totality of the circumstances, including his subsequent incompetency to

stand trial, demonstrate he was without the requisite capacity to voluntarily give his

interview with the police.

We review a trial court’s ruling on a motion to suppress for an abuse of discretion.

Deleon v. State, No. 07-23-00184-CR, 2024 Tex. App. LEXIS 113, at *4–5 (Tex. App.—

Amarillo Jan. 8, 2024, no pet.) (mem. op., not designated for publication) (citing Martinez

v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011)). We apply a bifurcated standard

of review, affording almost total deference to a trial judge’s determination of historical

facts and reviewing the trial court’s application of law to the facts de novo. Id. (citing

Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim. App. 2016)). No statement of the

accused made as a result of custodial interrogation shall be admissible against an

accused in a criminal proceeding unless he is first advised of his relevant constitutional

rights and knowingly, intelligently, and voluntarily waives those rights. Munoz v. State,

No. 07-23-00088-CR, 2024 Tex. App. LEXIS 1911, at *3–4 (Tex. App.—Amarillo Mar. 14,
11
2024, pet. filed) (mem. op., not designated for publication) (citing TEX. CODE CRIM. PROC.

ANN. art. 38.22; Miranda v. Ariz., 384 U.S. 436, 498–99 (1966)). However, “[a] confession

may be involuntary under the Due Process Clause only when there is police

overreaching.” Id. (citing Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App.

2008)). If there is no police coercion or overreaching, there is no due-process violation.

Id. The same is true for Miranda rights and the waivers that apply to statements that

result from custodial interrogations. Id. Thus, the United States Constitution leaves

voluntariness claims based on the state of mind of the defendant to state laws governing

the admission of evidence, such as article 38.22 in Texas. Id.

The State has the burden of showing that a defendant knowingly, intelligently, and

voluntarily waived his Miranda rights. Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim.

App. 2010) (citations omitted). The State must prove waiver by a preponderance of the

evidence. Id. Statements of an accused if made freely and voluntarily without compulsion

or persuasion may be used against him. Chappell v. State, Nos. 07-17-00151-CR, 07-

17-00299-CR, 2018 Tex. App. LEXIS 882, at *1 (Tex. App.—Amarillo Jan. 31, 2018, pet.

ref’d) (mem. op., not designated for publication) (citing Delao v. State, 235 S.W.3d 235,

239 (Tex. Crim. App. 2007)). We examine the totality of the circumstances to determine

whether the statements made are without compulsion or persuasion. Id. (citing Delao v.

State, 235 S.W.3d at 239; Hernandez v. State, 421 S.W.3d 712, 717 (Tex. App.—Amarillo

2014, pet. ref’d)). And, the totality of the circumstances includes both the characteristics

of the speaker and the details of the interrogation. Id. (citing Hernandez, 421 S.W.3d at

717).

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Appellant’s interrogation was recorded on video. The video shows, before

questioning began, the interviewing detective informed Appellant he was arrested and

served with a warrant for aggravated sexual assault of a child. The detective then

admonished Appellant of his Miranda rights and warnings. At the end of the

admonishment, the detective asked Appellant, “Do you knowingly, intelligently, and

voluntarily waive these rights and wish to speak to me?” Appellant responded “Okay.”

The detective asked Appellant to answer “yes” or “no” and asked again, “Do you wish to

speak to me about this?” He answered, “Yes I will speak to you.” The detective asked,

“But do you understand your rights?” Appellant responded, “Yes, ma’am.” The detectives

questioned Appellant over the following nineteen minutes beginning with the question,

“Do you know what this is about?”

Appellant spoke without much prompting from the detectives during the interview,

although at times he displayed a problem with his hearing. Appellant denied assaulting

his daughter. He explained he was naked at the time because he claimed his daughter

woke him up and said she saw someone outside, and he ran outside without putting on

his clothes to check for intruders. He admitted to texting his spouse and telling her he

molested his daughter, but explained he texted her “to take the bullet for it” and “to get it

over with.” Toward the end of the interview, the interviewing detective asked Appellant if

he had any disabilities, to which he responded he was deaf—requiring hearing aids—and

had memory issues due to a childhood car accident. Upon learning of his disabilities, the

interviewing detective expressed she was uncomfortable continuing and terminated the

interview.

13
Appellant does not complain the detectives failed to inform him of his rights or

coerced him to speak. Rather, Appellant complains of constitutional and statutory

violations of his Miranda rights based on his own lack of comprehension of his rights.

However, because there is no evidence or allegation of coercion, we find no constitutional

due process violation, and we decline his invitation to engage in constitutional error

analysis. TEX. R. APP. P. 44.2(a); supra. Therefore, we only examine whether his

statutory rights were violated. Art. 38.22.

Appellant was subsequently determined to be incompetent to stand trial following

his interrogation. Appellant would have us impute this subsequent finding upon his

interview with the police to demonstrate he did not have the requisite competence to

“intelligently” and “voluntarily” waive his Miranda rights. Id. at § 2. Although he admitted

to having some disabilities and the interviewing detective herself terminated the interview

because she sensed Appellant was potentially unable to understand the interview, there

were no appreciable signs of impairment during the interview itself. Nonetheless, the

subsequent finding of his incompetence to stand trial raises a question about his

competence during the interview.

Assuming arguendo Appellant was unable to voluntarily waive his Miranda rights

at the time of the interrogation, the admission of the video must be disregarded unless it

affected a substantial right. TEX. R. APP. P. 44.2(b). “A substantial right is affected when

the error had a substantial and injurious effect or influence in determining the jury’s

verdict.” Thomas v. State, 505 S.W.3d 916, 926 (Tex. Crim. App. 2016) (quoting King v.

State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)). If “the error did not influence the

jury, or had but very slight effect, the verdict and the judgment should stand.” Id. In

14
making this determination, the following nonexclusive factors are considered: the

character of the alleged error and how it might be considered in connection with other

evidence; the nature of the evidence supporting the verdict; the existence and degree of

additional evidence indicating guilt; whether the State emphasized the complained-of

error; the trial court’s instructions; the theory of the case; and, relevant voir dire. Cook v.

State, 665 S.W.3d 595, 599 (Tex. Crim. App. 2023) (citing Motilla v. State, 78 S.W.3d

352, 356–58 (Tex. Crim. App. 2002); Schutz v. State, 63 S.W.3d 442, 444–45 (Tex. Crim.

App. 2001)).

The facts recited by Appellant during his interrogation were corroborated by other

evidence presented at trial, including:

• a text message from Appellant to the mother stating, “Forgive [sic]
for raping my daughter I’m sorry [E]von the devil told me do it I need
God if not I’m taking my life away”;

• text messages from mother to her ex-boyfriend corroborating
Appellant was found by mother naked with their daughter;

• testimony from mother corroborating—

➢ Appellant was naked with their daughter;

➢ Appellant’s explanation that their daughter woke him up
claiming there was someone outside, so he ran outside naked
to check for intruders;

➢ their daughter pointed to their car and said “Daddy, daddy
touched my butt”; and

• bodycam footage from the police officers responding to a 911 call
from mother regarding the assault.

During his interview with detectives, Appellant did not deny any of the above facts. The

only thing his video added was his rueful explanation for his actions. Even if the video
15
had not been introduced, the jury received substantial evidence of the statements made

by Appellant.

With the corroboration of Appellant’s statements through several other pieces of

evidence, the interrogation video did not influence the jury or had a very slight effect. The

admission of the interrogation video did not affect a substantial right of Appellant.

Accordingly, we do not find the trial court abused its discretion. Issue four is overruled.

ISSUE FIVE—FAILURE TO EXCLUDE PREJUDICIAL EVIDENCE

Appellant’s fifth issue complains the trial court erred in admitting evidence which

was not relevant and its probative value was substantially outweighed by its danger of

unfair prejudice. TEX. R. EVID. 401, 403. The particular evidence Appellant complains of

is:

• his daughter’s sippy cups;

• photos of his daughter; and

• a portion of the testimony of the forensic interviewer stating she had
to reschedule her interview with his daughter due to her emotional
state.

The trial court’s decisions to admit or exclude evidence are reviewed under an abuse of

discretion standard. See supra; Ballard, 2017 Tex. App. LEXIS 11719, at *6.

Appellant complains the sippy cups should not have been admitted into evidence

because they bore no relevance to the case. The sippy cups were never tested for any

biological material and did not provide any probative information regarding the charged

offense. On appeal, Appellant also points out the cups were never really discussed by

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witnesses at trial, except for statements the mother apparently saw her daughter holding

a sippy cup in the hallway with Appellant on the night in question. 6 But, even if the

daughter was not holding a sippy cup at the time her mother saw her with Appellant, the

salient portion of the testimony is Appellant was found naked with her. We agree with

Appellant, the sippy cups are not relevant as they do not make the commission of the

charged offense by Appellant more or less probable.

Appellant also complains of two photographs entered into evidence which depicted

his daughter at her forensic interview at two separate times. The first photograph shows

her crying, while the second photo shows her with a calmer demeanor. This coincides

with his complaint about the admission of the CAC forensic interviewer’s testimony, in

which she authenticated the pictures and testified the daughter was too emotional when

initially interviewed causing her to reschedule the interview to the following day. The CAC

interviewer, although she testified about the methods used in conducting forensic

interviews and the level of response the victim was able to provide, did not testify as to

her analysis of any responses provided during the interview. There was also a video of

the interview, which was not admitted into evidence. Appellant complains this evidence

should have been excluded because it was prejudicial.

Like the sippy cups, the photographs and CAC interviewer’s testimony regarding

the victim’s demeanor, without something more to tie them to Appellant’s commission of

6 The State admitted at trial it could not determine which sippy cup was the one the daughter held

in her hand, and it collected both in its initial collection of evidence from the victim’s home.

17
the offense, are not relevant and should have been excluded.7 However, we do not find

the photographs to be unfairly prejudicial. Appellant argues the evidence created an

impression with the jury his daughter was crying because of something he did. But the

photographs themselves do not point to Appellant as the perpetrator of a crime, and

neither does the fact the CAC interviewer rescheduled the victim’s interview. Evidence

of the victim’s demeanor at the CAC was not enough to “impress the jury in an irrational

way.”

Even assuming arguendo the sippy cups, pictures, and testimony were all

prejudicial and should have been excluded, we must determine if their admission affected

a substantial right of Appellant. TEX. R. APP. P. 44.2(b); Thomas, 505 S.W.3d at 926,

supra. The introduction of the sippy cups and the photographs were three pieces of

evidence out of 154 introduced by the State during its case-in-chief. The other evidence

introduced at trial was much more emotionally charged, including:

• video from the police;

• testimony of the victim’s mother;

• graphic pictures of the injuries sustained by the victim; and

• text messages in which Appellant confessed to “raping my daughter[.]”

When examined in the context of all the other evidence presented by the prosecution, two

sippy cups, two photographs, and the forensic interviewer’s testimony about the child

7 The State attempted to ask the interviewer about statements made by the victim, which would

have been relevant if she identified who assaulted her, but Appellant objected on the basis of hearsay,
which was sustained by the trial court.
18
victim being unable to conduct an initial interview were harmless and did not have “a

substantial and injurious effect or influence in determining the jury’s verdict.” Id. We find

no reversible error in the admission of the complained-of evidence. Appellant’s fifth issue

is overruled.

ISSUE SIX—FAILURE TO EXCLUDE OUTCRY EVIDENCE

For his sixth issue, Appellant complains the trial court erred in permitting a sexual

assault nurse examiner (“SANE”) to repeat the outcry of his daughter during her exam.

Appellant argues the trial court erred in permitting the SANE who attended to the victim

to read from her patient file the outcry reported to her by the mother, when the same

testimony from the mother was excluded.

While the mother was testifying, Appellant objected to any outcry testimony as

hearsay, arguing it did not meet the exception to hearsay under article 38.072. TEX. CODE

CRIM. PROC. ANN. art. 38.072 § 2(a), (b). The State did not call the victim as a witness

and did not otherwise make her available to testify, and the trial court determined the

requirements of article 38.072 were not met. Art. 38.072 § 2(b)(3). However, the trial

court overruled Appellant’s hearsay objection based upon article 38.072 when the SANE

began reading her patient history, which included a recitation of the alleged outcry the

victim made to her mother. Appellant’s trial counsel urged the SANE should not be

permitted to recite the same hearsay the mother was prohibited from testifying about. Art.

38.072 § 2(b)(3). The trial court surmised the hearsay statement fell within the exception

created by Rule 803(4), because the history was being taken for the purposes of providing

“medical diagnosis or treatment.” TEX. R. EVID. 803(4)(A).

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The State preliminarily argues Appellant did not sufficiently preserve his objection

to the SANE’s testimony by failing to object specifically on the basis of “hearsay within

hearsay.” TEX. R. EVID. 805. It proposes “a general hearsay objection does not preserve

a double-hearsay issue” and cites the following cases for this proposition: Juarez v. State,

461 S.W.3d 283, 294 n. 8 (Tex. App.—Texarkana 2015, no pet.); Freeman v. State, 230

S.W.3d 392, 403 (Tex. App.—Eastland 2007, pet. ref’d); Ricketts v. State, 89 S.W.3d 312,

319 n. 1 (Tex. App.—Fort Worth 2002, pet. ref’d); Serrato v. State, Nos. 05-18-01071-

CR, 05-18-01462-CR, 2019 Tex. App. LEXIS 6180, at *2 (Tex. App.—Dallas July 18,

2019, no pet.) (mem. op., not designated for publication); Richard v. State, No. 06-11-

00240-CR, 2012 Tex. App. LEXIS 5872, at *3 (Tex. App.—Texarkana July 20, 2012, no

pet.) (mem. op., not designated for publication); and Luster v. State, Nos. 05-13-01342-

CR, 05-13-01343-CR, 2014 Tex. App. LEXIS 12855, at *4 (Tex. App.—Dallas Dec. 1,

2014, no pet.) (mem. op., not designated for publication). With the exception of Luster,

all of these cases cite Ricketts for the proposition, which mentions the “rule” in a footnote

which refers to the general preservation of error rules. Ricketts, 89 S.W.3d at 319 n. 1.

Each of these cases is also distinguishable by our respective sister courts’ application of

an exception to the hearsay rule, making the comments regarding the “rule” only dicta.

Luster does not mention Ricketts or the double-hearsay “rule,” and does not stand for the

State’s proposition.8 The authority for a double-hearsay objection “rule” appears tenuous

at best.

8 In Luster, our sister court declined to entertain a complaint regarding hearsay within a statement

because the appellant only objected to the statement itself being hearsay at trial. Luster, 2014 Tex. App.
LEXIS 12855, at *8–9.
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There is also no “double-hearsay” objection under the rules of evidence. Rule 805

only provides a standard upon which hearsay statements may be admissible, but it is not

a basis for objection which a party must specifically assert. TEX. R. EVID. 805. Rather,

the rules of evidence only require the objecting party to “[state] the grounds for the ruling

that the complaining party sought from the trial court with sufficient specificity to make the

trial court aware of the complaint, unless the specific grounds were apparent from the

context.” TEX. R. APP. P. 33.1(a)(1)(A).9 It is clear from the trial transcript the trial court

understood the objection was specifically to the recitation of the victim’s outcry by the

mother contained within the nurse examiner’s report. Under these circumstances,

considering the context of the objection, Appellant adequately preserved his hearsay

objection for appeal.

Nonetheless, we must resolve this issue against Appellant. As he concedes, our

stare decisis qualifies a SANE’s exam as “medical diagnosis and treatment” and is an

exception to inadmissible hearsay under Rule 803(4). Sharp v. State, 210 S.W.3d 835,

839 (Tex. App.—Amarillo 2006, no pet.); Prieto v. State, 337 S.W.3d 918, 920–21 (Tex.

App.—Amarillo 2011, pet. ref’d). For statements to be admissible under Rule 803(4), the

proponent of the evidence must show that (1) the declarant was aware that the statements

were made for the purposes of medical diagnosis or treatment and that proper diagnosis

or treatment depended on the veracity of the statement and (2) the particular statement

offered is also “pertinent to treatment,” that is, it was reasonable for the health care

provider to rely on the particular information in treating the declarant. Prieto, 337 S.W.3d

9 Cf. Whitaker v. State, 286 S.W.3d 355, 368–69 (Tex. Crim. App. 2009) (when evidence is

composed of a mix of hearsay and non-hearsay, the objecting party must specifically point out the
statements which are inadmissible hearsay in order to preserve error).
21
at 921 (citing Taylor v. State, 268 S.W.3d 571, 589, 591 (Tex. Crim. App. 2008); Mbugua

v. State, 312 S.W.3d 657, 670–71 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d)). A

victim’s outcry to a SANE qualifies under the Rule 803(4) exception to hearsay. Sharp,

210 S.W.3d at 839; Prieto, 337 S.W.3d at 920–21. In this case, however, we have the

added hearsay layer of the mother recounting to the SANE her daughter’s outcry. Where

the parent gives the information relayed to her by her child to assist in the diagnosis and

treatment of the child, the parent’s hearsay statements are excepted under Rule 803(4).

Sandoval v. State, 52 S.W.3d 851, 857 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d);

accord, Taylor v. State, 268 S.W.3d 571, 587 n.88 (Tex. Crim. App. 2008). The purpose

of the SANE’s exam was to provide medical care related to injuries possibly sustained

from a sexual assault, and therefore, the mother’s report of the outcry to the nurse

examiner arguably fell within the Rule 803(4) exception.10

Even assuming, arguendo, the trial court improperly permitted the mother’s

hearsay of the victim’s outcry through the SANE, we must perform a harm analysis. TEX.

R. APP. P. 44.2(b); Thomas, 505 S.W.3d at 926, supra. The outcry was the only direct

evidence of the alleged sexual assault. However, the jury may make reasonable

10 We should note, however, the issue is not quite so clear, as the Texas Court of Criminal Appeals

has cautioned:

Certainly parents who convey information to a doctor for purposes of treating their child will
have a compelling (albeit not wholly selfish) motive to tell the truth. To the extent they have
first-hand knowledge of, e.g., the child’s medical history, there is no reason their out-of-
court statements should not be admissible under the rule. On the other hand, if they are
only relating, e.g., the cause of an injury as they themselves have been told by the child, it
is arguable that the hearsay exception should not apply. For while there is no reason to
question the truth-telling motive of the parents, the child’s statement to the parents may
not have been made with the intention (or even an awareness) that it would be passed on
to a medical professional for purposes of diagnosis or treatment. Under those
circumstances, the initial declarant of the hearsay-within-hearsay statement may not have
shared the selfish motive essential to guarantee its trustworthiness.

Taylor v. State, 268 S.W.3d 571, 587 n.88 (Tex. Crim. App. 2008).
22
inferences from circumstantial evidence. Jenkins v. State, 493 S.W.3d 583, 599 (Tex.

Crim. App. 2016). Even in the absence of the outcry, several pieces of evidence were

introduced at trial from which the jury could have reasonably inferred Appellant committed

the offense beyond a reasonable doubt, including:

• Appellant was found standing naked next to his daughter in the
middle of the night;

• the daughter told her mother she was in the mother’s truck with
Appellant and “daddy touched my butt”;

• Appellant texted the mother for forgiveness and admitted “raping my
daughter” and “I did her in her booty”; and

• the SANE’s examination revealed an injury to the daughter’s anus;

The jury had sufficient evidence before it to reasonably infer Appellant committed the

offense against his daughter, and the admission of the outcry through the SANE witness’s

testimony was harmless and did not affect a substantial right of Appellant.

Accordingly, we overrule Appellant’s sixth issue.

CONCLUSION

The judgment is affirmed.

Alex Yarbrough
Justice

Do not publish.

Quinn, C.J., concurs in the result.

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