Clayton Bernard Foreman v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-24-00107-CR
________________

CLAYTON BERNARD FOREMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. F21-38410
________________________________________________________________________

MEMORANDUM OPINION

Appellant Clayton Bernard Foreman (Foreman) appeals his conviction for

capital murder. See Tex. Penal Code Ann. § 19.03(a)(2). In five issues, Foreman

complains about the trial court’s rulings admitting evidence of extraneous offenses,

his recorded statement to law enforcement, and hearsay. Since the trial court did not

reversibly err in admitting the challenged evidence, we affirm the trial court’s

judgment.

1
BACKGROUND

On January 14, 1995, “Cynthia’s” parents discovered her handcuffed, semi-

nude body in the bathroom of her townhouse, where Cynthia had been sexually

assaulted and murdered.1 Although the investigation did not initially identify

Foreman as a suspect, DNA evidence collected during Cynthia’s autopsy later led

law enforcement authorities to arrest Foreman in 2021.

The amended indictment alleges that Foreman “did then and there

intentionally cause the death of an individual, namely [CYNTHIA], by drowning

and asphyxiation, and the defendant was then and there in the course of committing

or attempting to commit the offense of aggravated sexual assault and sexual assault

of [CYNTHIA.]” The case was tried to the jury, which found Foreman guilty of the

offense charged. The trial court consequently sentenced Foreman to life in prison

and Foreman filed an appeal. Because Foreman complains only about the admission

of certain evidence, we focus our discussion of the facts on the challenged evidence

in our summary of the evidence.

1
We refer to the victim, her family members, and the civilian witnesses and
excluded suspects by pseudonyms or familial relationships to conceal their
identities. See Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to be
treated with fairness and with respect for the victim’s dignity and privacy throughout
the criminal justice process”). See Smith v. State, No. 09-17-00081-CR, 2018 Tex.
App. LEXIS 1874, at *2 n.1 (Tex. App.—Beaumont Mar. 14, 2018, no pet.) (mem.
op., not designated for publication).
2
“Abigail’s” Testimony

Abigail testified that she and Cynthia were identical twins and that they were

“very[,] [v]ery” close. Not only did Abigail and Cynthia go to school together, they

lived together for a few years after graduating from college and becoming teachers.

After Abigail married, Cynthia lived alone in the townhouse that she and Abigail

previously shared.

Abigail testified that although she and Cynthia were friends of Foreman’s first

wife and were in Foreman’s wedding in 1982, she did not know Foreman and neither

she nor Cynthia kept in touch with his wife.

“Mason’s” Testimony

Mason testified that in January 1995, he and his wife lived in the townhouse

next to Cynthia’s and explained that the townhouses were on opposite sides of a

shared wall. At about 1:30 or 2:00 a.m. on January 14, 1995, Mason woke to hear

“two or three thumps[]” from Cynthia’s side of the wall, but the noise was “[n]ot

real loud, not enough – and it didn’t continue – where we would go knock on her

door.” In his January 14, 1995 written statement to law enforcement, Mason stated

that the sounds continued for sixty to ninety seconds, and that he went back to sleep

after the noise stopped. Mason did not hear screaming that morning.

3
“Max’s” Testimony

Max testified that in January 1995, he was twelve years old, and he and his

father were staying in Mason’s spare bedroom. At about 2:00 or 3:00 a.m. on January

14th, Max was awakened by a sound that “sounded like somebody kicking a wall or

beating on the wall.” He stated that the noise “happened a couple of times and

stopped. Happened a couple more and then stopped.” Max later heard noises “like

somebody ran down the stairs[,]” and then heard the front door and a car. Max

recalled hearing a car radio and seeing the car’s lights through the window blinds as

the car left. The following day, Max learned that Cynthia had been killed.

When Max gave the police his statement, the police asked him whether he

knew of anyone who had a pair of handcuffs. In response, Max identified a

neighborhood resident who worked as a security guard, and Max described the man.

Carolyn Lewis’ Testimony
Carolyn Lewis (“Lewis”) testified that she had worked for the Beaumont

Police Department’s 9-1-1 center since 1992. Although Lewis was the training

coordinator by the time of trial, in January 1995 she was a trainer and a dispatcher.

Lewis described how the recordings of calls to the 9-1-1 call center were

preserved, confirmed that the recordings played for the jury were authentic, and that

she had compared these recordings with the transcripts of the calls to ensure

accuracy.

4
In the first call, the jury heard Cynthia’s sister, Abigail. Abigail provided the

address and stated that she had just spoken with her parents and thought something

terrible had happened at her sister’s house. The next call was from Cynthia’s mother

who stated that she found her daughter murdered, handcuffed, tortured, and drowned

in the bathtub.

Despite Lewis’ role in authenticating the call recordings and transcripts, she

testified that she was not working when the calls were taken and was not involved

in the investigation.

Carmen Apple’s Testimony

Apple testified that in 1995, she was a Beaumont police officer assigned to

the day shift patrol. Apple was one of the officers dispatched to the scene of

Cynthia’s murder. Upon arriving at the scene, Apple observed Cynthia’s body lying

“on the floor with her head towards the tub and her legs more towards the door

opening.” Apple described Cynthia as wearing a t-shirt, but nude from the waist

down, with a blue and black striped towel draped over her body. Apple noticed that

Cynthia’s “hands were handcuffed behind her back[,]” and that there appeared to

have been a struggle in the bathroom and the bedroom. She recalled that there was

approximately four or five inches of water in the tub.

Although Cynthia’s body was lying on the floor when Apple first saw it,

Cynthia’s father acknowledged that when he found Cynthia’s body, it was lying over

5
the edge of the tub. Cynthia’s father moved her to the floor and covered her with the

towel.

Sara Moon’s Testimony

Moon testified that in 1995, she worked as a civilian ID technician with the

Beaumont Police Department. Moon described the responsibilities of the ID

department technician to include taking fingerprints, photographs, videos of crime

scenes and traffic accidents, as well as processing prisoners. Moon and another ID

technician gathered their equipment and went to the location, where officers had

already secured the scene. Moon took the exterior and interior photographs of the

crime scene, following her usual procedure of documenting the scene from the

outside and working inward. This approach to documenting the scene allowed Moon

to document forced entry, but none was observed in this case. In addition to taking

photographs, Moon processed items for fingerprints. Although she obtained a partial

print off a wine glass, Moon was unable at the time to compare that print to a suspect.

Dr. Charles Harvey’s Testimony

Harvey outlined his educational and professional qualifications as a forensic

pathologist and testified that he performed Cynthia’s autopsy on the day her body

was discovered. Boyd Lamb, of the Beaumont Police Department, was present at the

autopsy to accept the evidence Harvey collected. In describing his autopsy

procedure, Harvey explained that he would

6
[S]tart with an external examination. You describe the things that are
on the body and then the exterior appearance of the skin surface of the
body. Following that, you make an incision and open up the body
cavities and examine the organs and describe them in terms of weight
and anything that’s out of normal expectations.

During that process you can take small sections of various organ tissues
. . . for microscopic examination. And I did that in this case. . . . I do
the sexual assault examination. Took swabs from the vaginal vault,
from the anal vault, and from the oral cavity.2 Those swabs were also
smeared out on glass slides for examination. And tubes of blood were
collected from the autopsy victim here and submitted along with the
sexual assault material that was turned over to Boyd Lamb and the
police department.

Specifically describing Cynthia’s autopsy, Harvey recalled that when he first

examined her body, Cynthia was wearing a sleep shirt and was partly covered with

a blue and black striped towel. The shirt and towel were damp but not soaking wet.

Cynthia’s hands were handcuffed behind her back. Harvey described the multiple

blunt and sharp force injuries he observed, explaining that blunt force consists of

abrasions and bruises, and that scrapes are considered sharp force trauma. Harvey

further explained that the age of a bruise can be estimated by its color, since “[f]resh

bruises are purple[]” and “[o]ld bruises are greenish yellow to brown[.]” Of the

thirty-six different injuries Harvey documented in his autopsy report, he believed

only two of them predated “the trauma that occurred at the time of [Cynthia’s]

death.” According to Harvey, at the time of Cynthia’s death, Cynthia sustained

2
In Harvey’s opinion, if semen were found in these areas, it was possible
that a sexual assault had occurred.
7
injuries to her head and face; torso, shoulders and hips; and her right leg and foot.

Cynthia also had hand and wrist injuries from the handcuffs. Harvey observed foam

on Cynthia’s nose and mouth and initially determined that she died by drowning in

the bathtub at the scene.

While preparing for trial, however, Harvey changed his opinion regarding the

cause of Cynthia’s death to “restrained asphyxia[.]” Harvey described this biological

process as follows:

Their chest is compressed, and they – they just simply can’t breathe.
And the characteristics of that are that pressure on the chest puts
pressure on the large vein in the upper chest that returns blood to the
heart. And that produces a backup of blood because the arterial
circulation is still beating from the heart, and it produces this upper
body congestion – congestion is a pathological forensic pathology term
meaning the blood is engorged in the venous part of the circulation and
returned.

Now, the heart still continues to produce blood pressure by beating
because it has blood that returns from the lower part of the body and
enables it to circulate blood pressure to the arteries. The arteries are too
muscular and stiff to be compressed by that external pressure in the
chest.

So what you end up with is an upper body, dark purplish coloration that
is also accompanied by little breaks in some of the small tiny veins and
capillaries. And they spread out little hemorrhages that are present and
are called Tardieu spots.

...

Along with that, the blood flows back up in the brain, and the brain
starts to swell. And that happened in this case, and it compressed the
lower part of her brain against the lower part of her skull, and that is

8
what stopped her from finally trying to breathe. It’s called herniation.
And that was the result of the asphyxial type of death.

Harvey testified that a similar finding could have been caused by the

application of pressure from behind for about five to ten minutes. He noted that the

edge of the bathtub was “a broad enough surface that it might not cause any visible

bruising.” The manner of death was homicide. Harvey acknowledged that although

the presence of semen would not necessarily be evidence of assault, he stated that

“[t]he fact that [Cynthia] was handcuffed and dead pretty much rules out

consensual.”

Boyd Lamb’s Testimony

Lamb is a retired Beaumont police officer. Lamb testified that in 1995 he was

employed by the Beaumont police department and he was one of the ID technicians

involved in photographing and collecting evidence regarding Cynthia’s murder. In

that capacity, Lamb and Moon “began to process the scene for fingerprints and

collect evidence.” The evidence collected included the tee shirt Cynthia was

wearing, the towel that was placed over her body, a comforter or bedspread,

pillowcases, and the handcuffs taken from Cynthia’s body. Lamb confirmed Moon’s

testimony that there was no sign of forced entry to Cynthia’s townhouse. Lamb also

attended Cynthia’s autopsy and collected evidence obtained during that procedure,

including the photographs Harvey referred to during his testimony.

9
George “Mitch” Woods’ Testimony

Woods testified that although he was retired by the time of trial, he worked as

the chief criminal investigator for the district attorney’s office in 1995 when the

crime took place. According to Woods, “[t]he use of DNA in law enforcement at

that time was a fairly new tool[,]” Woods and his colleagues focused on DNA

evidence that might solve this crime. To that end, they took Cynthia’s sexual assault

kit and other evidence to the FBI crime laboratory and CellMark’s laboratory for

DNA analysis.

Law enforcement considered Dylan a “potential suspect[,]” interviewed him,

and obtained samples of his DNA, but Dylan was excluded as a contributor of the

DNA found at the crime scene. DNA samples from “several” other people were also

submitted to CellMark for DNA comparison during the course of the investigation.

Cary Oien’s Testimony

Oien is a member of the FBI’s Quantico, Virginia, laboratory. Oien testified

that the laboratory received specimens for testing and comparison to the DNA found

on Cynthia. The lab received specimens of DNA taken from Cynthia, Dylan, and

two other possible suspects. The laboratory’s hair and fiber analysis excluded Dylan

and the other two suspects as contributors to the DNA evidence found on Cynthia’s

body.

10
David Mittelman’s Testimony

Mittelman testified that he works for Othram, a forensic laboratory that

provides “advanced DNA testing in support of law enforcement investigations[.]”

Mittelman described Othram’s role as “a very narrow and focused kind of area of

DNA testing[]” that takes place after conventional STR testing fails to generate leads

in a case. Instead of using “traditional methods,” Othram develops a profile to help

law enforcement identify a suspect’s family. After reviewing the case file and the

evidence obtained, Othram may extract additional DNA from the evidence and

develop a profile containing “hundreds of thousands of datapoints” that can be used

to generate new leads in the investigation. In this case, Othram developed a profile

using Cynthia’s vaginal swabs and a piece of fabric cut from the comforter collected

at the crime scene. From that profile, Othram created a genotype kit report, which

“can then be used to do anything from comparisons to other profiles to genetic

genealogy to analysis of biogeographical ancestry[.]” Mittelman then explained the

content of that report, which was admitted into evidence without objection.

Melissa Staples’ Testimony

Staples, a molecular biologist, testified to her education and training. She

recalled that in January 1995, she was working at CellMark, analyzing DNA for

criminal cases. As part of her duties, Staples tested DNA evidence from this case

and excluded a total of eleven individuals as contributors.

11
Angela Fitzwater’s Testimony

Fitzwater testified that in 1995 and 1996, she worked as a forensic analyst at

the Jefferson County Regional Crime Laboratory. In this capacity, Fitzwater “would

perform serological testing on evidence submitted to the lab for the presence of

biological fluids on evidence that was collected from crime scenes.” More

specifically, she “would perform presumptive and confirmatory testing on the

biological fluids to further identify what kind of fluids they were.”

Fitzwater examined the comforter collected from the crime scene for the

presence of seminal fluid. To do so, she would “visually search the comforter for the

presence of a stain that might be seminal fluid.” Upon finding such a stain, Fitzwater

would swab the stain and add a chemical to the swab. If the swab changed its color

to purple, it was a presumptive test for seminal fluid. Further testing confirmed that

the stain on the comforter was seminal fluid, so Fitzwater cut out the stained area

and stored it for future potential analysis or safekeeping. She also cut out an

unstained area of the comforter as a negative control. The comforter cutting was then

sent to CellMark for analysis. Fitzwater did not remember sending other items to

CellMark but recalled that the “purple and black” towel yielded a presumptive

positive test for seminal fluid. Although Fitzwater detected a possible blood stain on

a sheet taken as evidence, the amount was insufficient for further testing. Fitzwater

12
acknowledged, however, that scientific improvements since 1995 might permit

further testing.

Cassie Carradine’s Testimony

Carradine outlined her educational and professional experience, which

included working at the crime lab at the City of Austin and with the Texas DPS. At

both locations, Carradine worked in forensic DNA, serology, and biology, and the

like. While at the DPS laboratory, Carradine analyzed evidence from this case for

comparison to reference samples. This evidence included sperm and epithelial

evidence from Cynthia’s vaginal swabs, Cynthia’s blood sample, a cutting from the

comforter, a baseball cap, a toothbrush, and a swab obtained from a pair of pliers.

After developing DNA profiles, Carradine compared these profiles to the

DNA profiles from a particular convicted felon and from an unknown suspect in a

different case. Both suspects were excluded as contributors of the DNA profile

developed from the evidence in Cynthia’s case, and Dylan was also excluded.

Carradine’s analysis of the DNA profiles from the sperm and epithelial cell fractions

developed from the comforter stain included a combination of DNA from Cynthia

and an unknown male contributor. The analyses of Cynthia’s vaginal swab, anal

swab, and fingernail scrapings yielded the same result. The analysis of the pliers,

however, excluded both Cynthia and the unknown male.

13
Tom Gill’s Testimony

Gill, a retired FBI agent from Ohio, testified that the FBI was contacted in

April of 2021 before he retired to assist with a cold-case homicide of Cynthia. The

Texas authorities had identified Foreman as a potential suspect, believed that

Foreman lived in Gill’s area, and sought help covertly obtaining a sample of

Foreman’s DNA to compare it to a DNA sample from the crime scene. To that end,

Gill verified Foreman’s address and asked Detective Gammell to do a “trash pull”

at Foreman’s residence. Gill described a trash pull as “a common law enforcement

technique where you surreptitiously collect trash that’s put out at the curb and then

go through it for evidence.” After Gammell performed the trash pull, Gill and Special

Agent Hartsough photographed the bags and “went through each item of trash

hoping to find something that we thought would contain DNA.” The trash search

yielded hair, plastic utensils, dental floss, mail addressed to Foreman, and

prescription bottles bearing Foreman’s name. Gill forwarded these items to the local

Texas FBI office.

Tina Lewallen’s Testimony

Tina, a Beaumont police detective, testified that she was assigned to the auto

theft task force at the time of trial.3 In about June 2020, Tina learned that Aaron, her

3
For ease of reference, we refer to Detective Tina Lewallen and her husband
Detective Aaron Lewallen by their first names unless it is otherwise clear from the
context.
14
husband and a Beaumont police officer, and the Texas Rangers were looking into

Cynthia’s case. Since Tina had an interest in genealogy and built her own family tree

on ancestry.com, she also became involved in the investigation to identify Cynthia’s

killer.

The suspect’s DNA was uploaded to a website called GEDmatch and Tina

asked others to send her their DNA files so that those files could also be uploaded to

GEDmatch. Centimorgans measures “the proximity of matching DNA.” The number

of centimorgans one has in common with another person measures the proximity of

the family relationship. These family relationships enable a researcher to follow a

family tree. Researchers also use public records, such as birth and death certificates,

and census records.

During her research, Tina noticed that Shera LaPoint was building family

trees with Tina’s suspect, so Tina contacted LaPoint and they began to work

together. As Tina continued putting the family trees together, she learned that when

distant cousins marry, the DNA is passed down and the number of centimorgans

increases. Tina testified that this phenomenon is common in Cajun culture because

the “area was so isolated for so many generations[.]” To build the family tree, Tina

began with the most common recent ancestor and built outward or triangulated. She

had a list of names and estimated that it took her about three months to develop leads

that had ties to the Beaumont area, and Tina ruled them out through their DNA. Tina

15
finally narrowed her search to Foreman and his brother who both had ties to the

Beaumont area. She identified the brothers through “numerous second cousins.”

Tina and Aaron mapped Foreman’s mother’s family tree, constructed a family tree

on some other matches, and concluded that the suspect had to be a child of

Foreman’s mother and father.

The next step in the investigation was to surreptitiously obtain Foreman’s

DNA, so Aaron contacted the Ohio FBI office for assistance. As Gill testified, they

obtained items from Foreman’s trash for DNA testing.

Shera LaPoint’s Testimony

LaPoint, a forensic genetic genealogist, testified that she currently works for

DNA Labs International, but in 2020 when she first became involved in this case,

she was self-employed. She first developed an interest in genealogy after her

grandfather died, and she began her research into her own family history in 2003. At

that time, she was just using public records and internet sites. LaPoint took a DNA

test on ancestry.com and encouraged all her family members to have a DNA test,

including her son, husband, and father-in-law.

LaPoint is a member of the American Association of Professional

Genealogists, of the National Genealogical Society, and several local societies. She

has assisted people in various types of cases with genealogical research. One of the

cases she worked on was a case called the Texas Killing Fields case, and her father-

16
in-law’s DNA was linked to a body that was found in the Calder Road area. As a

Professional Genealogist she uses various web sites or databases like DNA Painter,

Shared Centimorgan Project and GEDmatch, along with public records, birth and

death records.

According to GEDmatch, LaPoint’s father-in-law, husband, and son shared

DNA links with the unknown DNA the police extracted from swabs taken off

Cynthia’s body and from other evidence collected at the scene of Cynthia’s murder.

So, “when law enforcement was looking at that information in the GEDmatch, my

E-mail address kept popping up.” Since LaPoint’s father-in-law was the “highest

match [in the family tree] that [she] knew,” Lapoint started there and looked for

“connections to other DNA matches” and where they may fit in the family tree.

When LaPoint gave the lead to Tina, the tree contained approximately 7,409 people,

and LaPoint eventually narrowed this number down to two people and she gave

those two names to the police in April of 2021.

Brandon Bess’ Testimony

Bess, a retired Texas Ranger, testified and described his law enforcement

experience, including cold-case investigations. Bess recalled that in January 2020,

Detective Aaron Lewallen requested his help with Cynthia’s case. The two of them

then reviewed the case to develop leads and learned, through Othram, about genetic

genealogy as an investigative tool. They included Tina and Lapoint in the

17
investigation. When they learned that Foreman and his brother were suspects, they

investigated Foreman by obtaining his DNA for comparison to the DNA taken

during Cynthia’s autopsy. After they compared the DNA results which matched,

Bess was convinced that Foreman was Cynthia’s killer, so he and Aaron went to

Ohio to interview Foreman.

Not wanting to frighten Foreman, Bess and Aaron asked Foreman to meet

them at the local police station for a reason unrelated to Cynthia’s murder. Foreman

did so, and Bess interviewed him. Bess testified as he did during the Motion to

Suppress, confirming that Foreman was there voluntarily and was free to leave.

Foreman denied dating or having sex with Cynthia or Abigail, being in Cynthia’s

home, and claimed he did not know that Cynthia had been murdered.

When Bess told Foreman that Foreman’s semen was found on Cynthia’s bed

and inside her vagina and rectum, Foreman’s response was, in Bess’ words, “calm,

cool and collected and [Foreman] said, ‘I don’t know how that could’ve happened.’”

Tanya Dean’s Testimony

Dean testified that she was a DNA section supervisor at the Texas DPS

Regional Crime Lab in Houston. Dean described her education and experience and

noted that one of her professional responsibilities is to receive biological samples

for DNA comparison. At the end of the DNA analysis, Dean would “get a picture

representation of the genetic profile from those items of evidence[.]” She can then

18
compare that profile to other samples to determine whether they are the same or

similar. When a DNA match is reported, it is done in terms of a likelihood ratio,

meaning how likely it is that the suspect is a contributor of the DNA sample. Dean

stated that a likelihood ratio of 1,000 and above supported inclusion.

Dean was able to obtain a useable DNA profile from the spoons retrieved from

Foreman’s trash. If Dean assumed that it was Foreman’s DNA on the spoons, the

DNA mixture Dean obtained from the cutting of Cynthia’s comforter was 96.1

septillion times greater “than the probability of obtaining this profile if the DNA

came from two unrelated, unknown individuals.”4 Dean’s analysis of Cynthia’s

vaginal swab determined that “the probability of obtaining this mixture profile if the

DNA came from Clayton Foreman and one unrelated, unknown individual is 213

septillion times greater than the probability of obtaining this profile if the DNA came

from two unrelated, unknown individuals.”

After obtaining Cynthia’s DNA profile, Dean was able to update her

conclusions to further narrow the likelihood that the DNA found at Cynthia’s

autopsy and at the crime scene came from anyone other than Foreman. Specifically

referencing the vaginal swabs, Dean testified that “[t]he probability of obtaining this

mixture profile if the DNA came from [Cynthia] and Clayton Foreman is 461

4
Dean explained that 96.1 septillion is 961 followed by twenty-three zeroes
and that the population of Earth is about seven billion.
19
septillion times greater than the probability of obtaining this profile if the DNA came

from [Cynthia] and one unrelated, unknown individual.” Referencing the anal swab,

Dean testified that the likelihood ratio supported the proposition that Foreman was

a possible contributor, although Foreman was excluded as a contributor to the profile

on the box containing the swab. Dean stated that “[t]he probability of obtaining this

mixture profile if the DNA came from [Cynthia] and Clayton Foreman is 15,600

times greater than the probability of obtaining this profile if the DNA came from

[Cynthia] and one unrelated, unknown individual.”

Aaron Lewallen’s Testimony

Aaron, a detective with the Beaumont Police Department, testified that in

addition to his other duties, he worked as a task force officer with the local FBI

office. In 2020, after Bess approached Aaron about any cold cases that might be

solved using genetic genealogy, Aaron researched Cynthia’s case “to see if there’s

anything else that we could do to bring justice to those families.” Believing that the

biological evidence was promising, Aaron and Bess approached Othram, which

developed a profile. They entered the profile into GEDmatch, which identified some

distant relatives that the officers used to begin their investigation. From there, Tina

and LaPoint helped with Aaron’s research. When Tina and LaPoint identified a

potential target, Aaron and Bess asked people to volunteer a DNA sample and

20
obtained about thirty or forty samples. Those DNA profiles were entered into

GEDmatch and the research continued.

Aaron and Bess focused on Foreman, who no longer lived in Texas, so Aaron

contacted the FBI’s Cincinnati field office and requested that personnel obtain

Foreman’s trash to gather evidence. Items from Foreman’s trash, including forks,

spoons, and dental floss, were sent to the local FBI office, and later were taken to

Tanya Dean at the Houston crime lab. They also obtained Foreman’s DNA pursuant

to a search warrant.

Foreman’s Motion to Suppress (Recorded Interview)

Since Foreman was not given Miranda warnings before his interview, he

sought to exclude the recording of that interview from evidence on the basis that it

violated his Fifth Amendment rights. During the hearing on Foreman’s Motion to

Suppress the recording of Foreman’s interview with Bess and Aaron, Bess testified

as the recording was played for the trial court. Bess testified that when he and Aaron

interviewed Foreman, Foreman was neither in custody nor under arrest. During the

interview, Bess expressly confirmed with Foreman that Foreman was present

voluntarily and was free to leave at any time. Moreover, Bess switched seats with

Foreman to place Foreman in the chair nearest the door to the interview room, thus

demonstrating that Foreman was free to leave. Bess further recalled that he and

Aaron were not armed during the interview so as not to intimidate Foreman. Bess

21
acknowledged that after leaving the interview room, Foreman was arrested pursuant

to an arrest warrant the officers procured the previous day.

After considering counsel’s arguments and twice viewing the recording of

Foreman’s interview, the court ruled that law enforcement officers did not violate

Foreman’s rights by foregoing Miranda warnings, since Foreman was not in custody

until after the interview. The court explained its ruling, stating:

An officer’s obligation to administer Miranda warnings attaches,
however, according to the Supreme Court, only where there has been
such a restriction on a person’s freedom as to render him, quotes, “in
custody.” And in determining whether an individual is in custody, a
Court must examine all the circumstances surrounding the
interrogation, but the ultimate inquiry is simply whether there was a
formal arrest or restraint on freedom of movement of the degree
associated with a formal arrest.

The Supreme Court has made it clear that the initial determination of
custody depends on the objective circumstances of the interrogation,
not on the subjective views harbored by either the interrogating officers
or the person being questioned. So, the two aspects that are important
when the warnings are required, which were not made in this case
because there was certainly interrogation, the question is whether the
defendant was in custody, which would have required the warnings to
be expressed to him.

It is the compulsive aspect of custodial interrogation and not the
strength or content of the government’s suspicions at the time the
questioning is conducted which led the Miranda court to require the
custodial Miranda warnings to be formally made to a suspect.

The mere fact that an investigation has focused on a suspect does not
trigger the need for Miranda warnings in non-custodial settings, and it
is well settled by law that a police officer’s subjective view that an
individual under questioning is a suspect, even if that is not disclosed
to the suspect, does not bear upon the question of whether the individual
22
is in custody for purposes of Miranda. One cannot expect the person
under interrogation to probe the officer’s innermost thoughts unless
they are communicated or otherwise manifested to the person being
questioned. An officer’s evolving but unarticulated suspicions also do
not affect the objective circumstances of an interrogation or interview
and, thus, cannot affect the Miranda custody inquiry.

The threat to a citizen’s Fifth Amendment rights that Miranda was
designed to neutralize has little to do with the strength of an
interrogating officer’s suspicions. An officer’s knowledge or beliefs
may bear upon the custody issue if they are conveyed by word or deed
to the individual being questioned. Those beliefs are relevant only to
the extent that they would affect how a reasonable person in the position
of the individual being questioned would gauge the breadth of his or
her freedom of action. Even a clear statement from an officer that the
person under interrogation is a prime suspect is not in itself dispositive
of the custody issue, for some suspects are free to come and go until the
police decide to make an arrest. An officer’s views concerning the
nature of an interrogation or beliefs concerning the potential culpability
of the individual being questioned may be one, among many, factors
that bear upon the assessment whether the individual was in custody
but only if the officer’s views or beliefs are somehow manifested to the
individual under interrogation and would have affected how a
reasonable person in that position would perceive his or her freedom to
leave.

The trial court then reviewed the details of Foreman’s interview, noting that

Foreman was free to leave, the door was not locked, and Foreman agreed to speak

with Bess and Aaron. Finding that Foreman was not in custody during the interview,

the trial court stated, “custody may be understood to have occurred when the suspect

is physically deprived of his freedom of action in any significant way. That did not

occur in this case.” Therefore, the court reasoned, “the defendant in this case under

23
these circumstances was not in custody and, thus, the Miranda warnings are not –

were not necessary under this set of facts and this situation.”

Foreman’s Interview

In 2021, Bess and Aaron travelled to Ohio to interview Foreman. At the

beginning of the interview, Foreman is sitting next to the wall away from the door

of the interview room, Bess is seated nearest to the door, and Aaron is next to Bess.

After obtaining information such as Foreman’s full name, address, and date of birth,

Bess confirms that Foreman was present voluntarily, then suggests that he and

Foreman “trade seats” to place Foreman nearest to the door and has Foreman open

the door to show that it was unlocked. Bess then tells Foreman that he and Aaron

were investigating a crime, that Foreman was “not under arrest, you’re not in trouble,

nothin’” did not “have to talk to us at all,” and could “leave at any time.” Foreman

agreed to speak with the officers.

The interview covers Foreman’s work history, from bill collector to ride share

driver, before moving to the purpose of the interview: Cynthia’s murder. Foreman

states in the interview that Cynthia and Abigail were friends of his former wife and

were bridesmaids at his 1982 wedding, but he denies maintaining contact with either

Cynthia or Abigail since then. Foreman further denies entering Cynthia’s house and

denies dating or having sexual relations with either Cynthia or Abigail. In addition,

Foreman denies familiarity with Cynthia’s townhouse location or being aware of

24
Cynthia’s murder. Foreman did, however, recall that Cynthia’s brother had died

about six months before the interview.

When Bess confronted Foreman with the information that Foreman’s DNA

was found inside Cynthia, Foreman replied, “I don’t know how it got there[.]” Bess

then invited Foreman to give his side of the event and Foreman states, “I’m not going

to say anything[,]” and invokes his right to counsel. Bess then terminated the

interview, and Foreman gathered his belongings and left the interview room.

Immediately after Foreman left the room, officers are heard arresting him for

Cynthia’s murder.

Foreman’s Motion to Suppress (Extraneous Offense of Sexual Assault)

In 1981, Foreman was arrested for sexual assault of “Patty.”5 Pursuant to a

plea bargain, Foreman pleaded guilty to aggravated assault and was placed on

deferred adjudication. Foreman moved to exclude evidence of this extraneous

offense, but the trial court admitted it based on its finding that the evidence was

“relevant, and its probativeness is not substantially outweighed by undue prejudice.”

At the hearing on Foreman’s Motion to Suppress evidence of his prior offense,

the complaining witness, “Patty,” testified. Patty recalled that in 1981, when she was

nineteen years old, her car became stuck in a ditch one rainy evening, so she walked

to a gas station to call her mother. Foreman was sitting in his car at the gas station,

5
We use a pseudonym for the name of the victim.
25
and he started talking to Patty. When Patty explained to Foreman that her car was

stuck, Foreman asked her whether she knew his brother from having attended the

same high school. Foreman then told Patty he was a police officer and offered to

take her home. Patty accepted Foreman’s offer. Instead of taking Patty home,

Foreman took her to a field where he threatened Patty with a switchblade, tied her

hands behind her back, and forced her to perform oral sex on him before he sexually

assaulted her both anally and vaginally. Foreman then took Patty home.

About a week after the assault, Patty told a friend what had happened, and the

police became involved. Foreman was charged with sexual assault or aggravated

sexual assault. Although Patty acknowledged having agreed to Foreman’s plea

bargain, she later regretted doing so.

In front of the jury, Patty testified as she did at the Motion to Suppress hearing.

Additionally, Patty stated that when she agreed to Foreman’s plea, she did not

understand it. Patty also testified that someone called her to let her know Foreman

“had admitted it and that he was off the force and that he had got a job at Nabisco.

And the caller said that Foreman told them he is about to get married, and he’s going

to marry [Cynthia].” Patty responded, ‘“[w]ell, what do I do if I see her out?”’ and

the caller told Patty, ‘“Just don’t go – don’t go approach her.”’ She stated that she

came forward for Cynthia.

26
“Daphne’s” Testimony

Daphne, Foreman’s ex-wife, testified that she and Foreman were married

from 1982 to 1993, and that Cynthia and Abigail were bridesmaids at their wedding.

Daphne and Foreman had one child together, a son born in 1984. This child was

friends with Cynthia and Abigail’s nephew and attended the school where Cynthia

taught.

Before Daphne and Foreman married, Daphne learned that Foreman had been

arrested for a sexual assault. Foreman told Daphne “that it was a big

misunderstanding and that the charges had been dropped.” Being “very gullible[,]”

Daphne went ahead with the wedding despite her parents’ objections. At one point,

Foreman told Daphne that he thought Cynthia and Abigail were “so cute because

they were twins and he felt as though he wanted to make sure he protected them[.]”

Daphne did not think anything of the comment at the time, because she agreed that

Cynthia and Abigail were cute.

Another time, between 1986 and 1988, Daphne found a briefcase in the trunk

of Foreman’s car. The briefcase contained “a gun, a set of handcuffs, and some

horrible pornographic material.” Daphne testified that Foreman had no need of either

a gun or handcuffs. When Daphne heard that Cynthia had been murdered, she called

Foreman and told him Cynthia had been murdered, but he did not react with any

emotion.

27
“Kelly’s” Testimony

Kelly testified that in 2008 and 2009, she worked for Foreman at a collection

agency. During that time, Kelly saw two different pairs of handcuffs in Foreman’s

desk on two occasions. Kelly also recalled a colleague’s joke about nuns and

Catholic schoolteachers, to which Foreman responded ‘“[w]hy are they always

called [Cynthia]?”’ Although Foreman’s comment meant nothing to Kelly at the

time, she later read an article about Cynthia’s case and realized it was about a murder

victim with the same name Foreman had used.

“Tammy’s” Testimony
Tammy testified that she and Foreman had lived together for about four years

and were engaged at the time of his arrest in 2021. Tammy stated that she had wanted

them to get their DNA tested “to do the National Geographic study of Neanderthal

times[]” to see how the family traveled, but Foreman was “vehemently opposed to

it[,]” saying, “[h]e didn’t want people to have his personal information, and that’s

how people find you.” Foreman also told her that bill collectors find people through

DNA tests, which Tammy knew to be untrue.

Tammy testified that she once found pictures of young girls on Foreman’s

tablet. Although the pictures were not pornographic, when Tammy asked Foreman

about them, he claimed that the pictures were of friends’ children. Foreman then told

her he had the pictures “so that he could fantasize about taking their virginity.” When

28
Tammy learned that Foreman had been arrested in 1981 for a sexual assault,

Foreman told Tammy it was “a mistaken charge, that they had been drinking and she

falsely accused him of rape.”

The day Bess and Aaron arrested Foreman, they came to Tammy’s home,

saying that they needed to speak with Foreman about a purse someone had left in

Foreman’s vehicle while he was a ride share driver. Although Tammy then had no

reason to confront Foreman about going to the police station, she recalled that he

turned “deathly pale[]” when the officers asked him to go.

ANALYSIS

Foreman presents five issues, all arguing that the trial court erred by admitting

certain evidence that unfairly prejudiced his defense. We review complaints about

the admission of evidence, including the denial of a motion to suppress evidence,

under an abuse-of-discretion standard. See Wexler v. State, 625 S.W.3d 162, 167

(Tex. Crim. App. 2021); Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App.

2019). A trial court abuses its discretion if it ‘“acts arbitrarily or unreasonably’ or

‘without reference to any guiding rules and principles.”’ State v. Lerma, 639 S.W.3d

63, 68 (Tex. Crim. App. 2021) (citation omitted). We will not reverse a trial court’s

ruling on the admissibility of evidence unless it falls outside the zone of reasonable

disagreement. See Dabney v. State, 492 S.W.3d 309, 318 (Tex. Crim. App. 2016).

29
Issues One and Two: Evidence of an Extraneous Offense (Sexual Assault)

In his first two issues, Foreman argues that the trial court erred in overruling

his Motion to Suppress and allowing the State to introduce evidence of his 1981

sexual assault of Patty, because it constitutes “propensity evidence,” and the

prejudicial effect of this evidence outweighed its probative value. Foreman relies on

Rules 403 and 404(b) to support his argument. See Tex. R. Evid. 403, 404(b). Rule

403 permits the trial court to “exclude relevant evidence if its probative value is

substantially outweighed by a danger of . . . unfair prejudice, confusing the issues,

misleading the jury, undue delay, or needlessly presenting cumulative evidence.”

Tex. R. Evid. 403. Rule 404(b) states, in pertinent part:

(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the
character.
(2) Permitted Uses: Notice in Criminal Case. This evidence may
be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident. . . .

Tex. R. Evid. 403(b).

The State responds that it offered this evidence to show “identity, motive, and

[to] refute the defensive theory of consent.” At trial, the State also argued that it

offered the evidence of the extraneous sexual assault to show Foreman’s modus

operandi, since the two offenses were similar.
30
After considering the parties’ positions and holding a hearing outside the

presence of the jury, the trial court recited the applicable evidentiary standard and

made findings of fact and ruled that the State could use Patty’s testimony to show

identity, intent, motive, and lack of consent. The trial court further found that the

prejudicial effect of this evidence did not substantially outweigh its probative value

and that there were “no less than twelve (12) factual common denominators between

the cases[,]” as follows:

1. Foreman knew both victims as they all graduated from the same high
school;

2. The acts are similar;

3. The offense location (Beaumont, Texas);

4. Offense time (night);

5. Victims’ similarity in age to Foreman;

6. Victims resembled each other in appearance;

7. Foreman used a weapon;

8. Foreman used or threatened force;

9. Victims’ hands restrained behind their backs;

10.Victims were assaulted both anally and vaginally;

11.Foreman convinced each victim to trust him, thus enabling him to
commit the offenses;

12.“[E]ach victim was futilely trying to resist.”

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In addition, the trial court noted that the evidence was admissible to show

Foreman’s modus operandi. The court also gave a limiting instruction, telling the

jury not to consider Patty’s testimony unless it found beyond a reasonable doubt that

Foreman committed the extraneous offense, and in that event, to consider Patty’s

testimony only to show identity, intent, motive, and/or lack of consent, and for no

other purpose. We conclude that the trial court did not abuse its discretion in finding

that Patty’s testimony was admissible within the scope of Rule 404(b)(2). See Tex.

R. Evid. 404(b)(2).

As Foreman observes, the trial court could have excluded Patty’s testimony if

its probative value were “substantially outweighed by a danger of . . . unfair

prejudice[.]” See Tex. R. Evid. 403. The record indicates that the trial court balanced

the probative value of Patty’s testimony against its potential for unfair prejudice and

found that “its probative value is not substantially outweighed by unfair prejudice,

confusion of the issues, misleading the jury, undue delay, nor needless presentment

of cumulative evidence.” The trial court’s ruling “must be measured against the

relevant criteria by which a Rule 403 decision is made.” Perkins v. State, 664 S.W.3d

209, 217 (Tex. Crim. App. 2022) (citing Mozon v. State, 991 S.W.2d 841, 847 (Tex.

Crim. App. 1999)). We examine:

1. [H]ow compellingly the extraneous offense evidence serves to make
a fact of consequence more or less probable;

32
2. [T]he potential of the evidence to impress the jury “in some
irrational, but nevertheless indelible way[;]”

3. [T]he time needed to develop the evidence; or

4. [T]he force of the proponent’s need for this evidence to prove a fact
of consequence.

Id. at 217 (citation omitted).

Given the similarities between Patty’s and Cynthia’s assaults, the State’s need

for the evidence, the fact the evidence supported the State’s theory and made it more

probable that Foreman was the one who assaulted Cynthia, criteria one and four

above are satisfied. See id. The presentation of Patty’s testimony took approximately

thirty minutes of a trial lasting over a week. In comparison to the trial as a whole,

Patty’s testimony was brief, and the jury was not long “distracted” from the evidence

about Foreman regarding Cynthia’s assault.

Although the challenged evidence did have the potential to impress the jury

with the inference of character conformity, the trial court addressed any such

inference by giving the jury a limiting instruction during the trial and in the jury

charge. This instruction unambiguously limited the jury’s consideration of the

extraneous offense, and the jury is presumed to have followed the instruction. See

Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). Accordingly, the

second factor also favors admissibility. See Perkins, 664 S.W.3d at 217.

33
Since the trial court’s decision to admit this evidence is within the zone of

reasonable disagreement, we cannot say that the trial court abused its discretion. We

accordingly overrule Foreman’s first two issues.

Issue Three: Evidence of a Firearm

In his third issue, Foreman argues that the trial court erred by allowing Daphne

to testify that she saw a firearm in the trunk of Foreman’s car while Foreman may

have been on probation. At trial and on appeal, the State has posited that it did not

offer this evidence as evidence of an extraneous offense but instead offered it to

show “preparation or premeditation[,]” since it was the State’s theory that Foreman

used a weapon during the commission of the charged offense.

Although the court allowed this testimony, it instructed the jury as it did

previously, to “consider this evidence only if you deem that it is proven beyond a

reasonable doubt. And it can be used only for the purposes of determining whether

an element of this indictment that we are here for, whether an element of that charge

is in any way proven by the evidence.” The trial court further permitted the jury to

consider this evidence for purposes of identity, intent, motive, or lack of consent,

only.

According to Daphne, Foreman had no need for a gun, and Foreman’s

possession of a gun in the trunk of his car supports the State’s theory of the case that

Foreman subdued his victim[s] with a weapon and is therefore relevant. See Tex. R.

34
Evid. 401 (defining relevance); see also Montgomery v. State, 810 S.W.2d 372, 375-

76 (Tex. Crim. App. 1990) (discussing relevance). Being relevant, this evidence is

admissible unless excluded by a constitutional, statutory, or rule provision. See

Montgomery, 810 S.W.2d at 376; Tex. R. Evid. 402. Foreman has not shown any

mandatory exclusionary requirement or that the trial court abused its discretion by

admitting the evidence.

To the extent Foreman claims the probative value of the evidence was

outweighed by its prejudicial nature, it is not enough that the challenged evidence

be prejudicial since all relevant evidence is prejudicial to some degree. See

Montgomery, 810 S.W.2d at 378. It is only when the prejudice is unfair that the trial

court is empowered to exclude it. Id.; Tex. R. Evid. 403. On this record, we cannot

say the trial court abused its discretion by admitting the challenged evidence.

We overrule Foreman’s third issue.

Issue Four: Recording of Foreman’s Interview
Foreman next argues that because he was the main suspect in Cynthia’s

murder, his April 2021 interview with Bess and Aaron constituted a custodial

interrogation. Therefore, he contends, the failure to warn him of his Constitutional

rights before the interview, coupled with the trial court’s decision to allow the

recording of his interview into evidence, constitutes reversible error. See Miranda v.

35
Arizona, 384 U.S. 436, 444 (1966); see also Tex. Code Crim. Proc. Ann. art. 38.22

§ 3.

It is undisputed that in April 2021, Foreman was a suspect in Cynthia’s

murder, that Bess and Aaron had a warrant for Foreman’s arrest at the time they

interviewed him, and that they did not read Foreman his Miranda warnings before

the interview. Absent custody, however, no such warnings were legally required.

See Miranda, 384 U.S. at 444 (specifically referencing custodial interrogation); see

also Wexler, 625 S.W.3d at 167 (same); Tex. Code Crim. Proc. Ann. art. 38.22 § 3

(same).

Custody is a mixed question of law and fact that does not turn on witness

credibility and demeanor unless the witness testimony (if believed) would always

decide the custody question. Wexler, 625 S.W.3d at 167 (citing State v. Saenz, 411

S.W.3d 488, 494 (Tex. Crim. App. 2013)); Herrera v. State, 241 S.W.3d 520, 526-

27 (Tex. Crim. App. 2007). We apply a bifurcated standard of review (1) giving

almost total deference to the trial court’s factual assessment of the circumstances

surrounding the questioning, and (2) reviewing the ultimate legal determination of

whether the person was in custody under those circumstances under a de novo

standard of review. Wexler, 625 S.W.3d at 167. The trial court determined that

Foreman was not physically deprived of his freedom of action in any significant

way; that Foreman was never told he could not leave; that officers did not create a

36
situation wherein a reasonable person would believe his freedom of movement was

significantly restricted; and that Foreman was not restrained from moving. Based on

these findings, the trial court further found that Foreman was not in custody during

the interview and that Miranda warnings therefore were unnecessary.

A custody determination requires two inquiries: the circumstances

surrounding the interrogation and whether a reasonable person in those

circumstances would have felt that he was not free to terminate the interrogation and

leave. Thompson v. Keohane, 516 U.S. 99, 112 (1995). “Once the scene is set and

the players’ lines and actions are reconstructed, the court must apply an objective

test” to determine whether there was restraint on freedom of movement of the degree

associated with an arrest. Id. The ultimate inquiry is whether, under the

circumstances, a reasonable person would have believed that his freedom of

movement was restricted to the degree associated with a formal arrest. Stansbury v.

California, 511 U.S. 318, 322 (1994); Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.

Crim. App. 1996). “The ‘reasonable person’ standard presupposes an innocent

person.” Dowthitt, 931 S.W.2d at 254 (citing Florida v. Bostick, 501 U.S. 429, 438

(1991)); Wexler, 625 S.W.3d at 167. The Court of Criminal Appeals has generally

outlined four situations that may constitute custody: (1) the suspect is physically

deprived of his freedom of action in any significant way, (2) a law enforcement

officer tells the suspect that he cannot leave, (3) law enforcement officers create a

37
situation that would lead a reasonable person to believe his freedom of movement

has been significantly restricted, or (4) there is probable cause to arrest, and law

enforcement officers do not tell the suspect that he is free to leave. Wexler, 625

S.W.3d at 167-68 (citing Dowthitt, 931 S.W.2d at 255). The defendant bears the

initial burden to establish that his statement was the product of a custodial

interrogation. Id. at 168 (citations omitted).

Foreman did not meet this burden under any of the four situations referenced

above. Foreman was, by his own admission, present voluntarily, and therefore was

not “deprived of his freedom in any significant way.” See Allen v. State, 536 S.W.2d

364, 370 (Tex. Crim. App. 1976). He freely went to the police station and spoke with

the officers. The officers told him he could leave, they deliberately opened the door

of the interrogation room, they did not restrain Foreman in any manner, and the facts

negate the second and fourth definitions of custody. The remaining inquiry is

whether the officers created a situation that would lead a reasonable, innocent person

to believe his freedom of movement has been significantly restricted. Here, the

officers did nothing other than question Foreman in a police station and merely

questioning a person in a police station does not constitute custody. See California

v. Beheler, 463 U.S. 1121, 1125 (1983) (“Miranda warnings are not required ‘simply

because the questioning takes place in the station house, or because the questioned

38
person is one whom the police suspect.’”) (quoting Oregon v. Mathiason, 429 U.S.

492, 495 (1977).

In both Beheler and Mathiason, the defendant voluntarily went to the police

station and was questioned there, and in both cases, the Supreme Court held that

Miranda warnings were not required because the defendants were not in custody at

the time of their interviews. See Beheler, 463 U.S. at 1121; Mathiason, 429 U.S. at

495. Similarly, in Gant v. State, we observed that being questioned at a police station

does not necessarily constitute custodial interrogation. See 153 S.W.3d 294, 300

(Tex. App.—Beaumont 2004, pet. ref’d.).

Foreman argues that since the officers already had a warrant for his arrest, he

actually was not free to leave and therefore he was in custody during his interview.

At the time of the interview, the officers likely knew that Foreman would eventually

be arrested. However, it is not the officers’ knowledge of the situation that controls

the outcome of the custody determination. See Stansbury, 511 U.S. at 319 (“[A]n

officer’s subjective and undisclosed view concerning whether the person being

interrogated is a suspect is irrelevant to the assessment whether that person is in

custody.”). Relying on Stansbury, in Permenter v. State, we affirmed the trial court’s

decision allowing a jury to view the defendant’s unwarned recorded statement, since

the defendant was not in custody during his interview despite the officers’ probable

cause for arrest. See Permenter v. State, No. 09-23-00177-CR, 2025 Tex. App.

39
LEXIS 4809, at *36 (Tex. App.—Beaumont July 9, 2025, no pet.) (mem. op., not

designated for publication).

Given the factual circumstances surrounding Foreman’s interview, we

conclude that the trial court did not err by finding that Foreman was not in custody

during the interview and that Miranda warnings therefore were unnecessary. We

overrule Foreman’s fourth issue.

Issue Five: Hearsay

In his final issue, Foreman argues that the trial court erred by allowing Tina

to testify to hearsay explaining why this case was reopened. The challenged

testimony follows:

[] [The Prosecutor]: How did you come to find out that they were
opening that case?

[] [Detective Tina Lewallen]: Ranger Bess is a friend of my husband’s,
and they’ve worked cases together in the past. And Bess had worked
recent cold cases using genetic genealogy and was able to get a solve.
So he - -

[] [Defense Counsel]: Your Honor, I’m going to object as
nonresponsive.

THE COURT: Question was: How did you come to find out that they
were opening that case?

[Defense Counsel]: Also hearsay.

THE COURT: All right.

[] [The Prosecutor]: Was just going into how she got involved in the
case and just what made her get involved in the case.
40
THE COURT: All right. Overruled. Go ahead.

[Detective Tina Lewallen]: So he - - Ranger Bess asked if Beaumont
PD had a case that he felt could be solved using genetic genealogy, and
my husband offered this case and thought that this one could be solved.”

“Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial
or hearing; and

(2) a party offers in evidence to prove the truth of the matter
asserted in the statement.

Tex. R. Evid. 801(d).

Since the challenged statement was made by Tina, and not by either Bess or

Aaron, it satisfies the first prong of the above definition of hearsay. Tex. R. Evid.

801(d)(1). We disagree, however, that the State offered Tina’s testimony to prove

the truth of the matter asserted, and therefore it does not satisfy the second prong of

the hearsay definition. As the State indicated to the trial court, it elicited this

information to explain how and why Tina became involved in the investigation.

Background information offered to explain the context of Tina’s involvement in the

investigation is not hearsay. See Langham v. State, 305 S.W.3d 568, 577 (Tex. Crim.

App. 2010) (noting that an out-of-court statement may be admissible if it is not

offered for the truth of the matter asserted, but only to provide the investigative

context in order to explain police conduct). As noted in Norton v. State, “‘[i]f the

fact in controversy is whether a communication was made and not its truth or falsity,

41
the writing, words or other communications is original evidence and not hearsay.’”

564 S.W.2d 714, 717 (Tex. Crim. App. 1978) (quoting Burchfield v. State, 475

S.W.2d 275, 277 (Tex. Crim. App. 1972)).

That said, even assuming without deciding that the challenged testimony was

hearsay and did not fall within an exception to the hearsay rule, the testimony also

duplicated Aaron’s testimony, which was admitted without objection, regarding his

work with Bess:

[The Prosecutor]: So, he [Bess] came to you in 2020. Was he looking
for that specific case, or was he just looking for a cold case to see if
there was something he could help out with?

[Aaron]: For a cold case. He had recently come off an investigation that
was in Seabrook, where they did very similar investigative techniques
that we use and had some success but their suspect had already passed
away.

[The Prosecutor]: So, the techniques that he was using at that time, what
was it that he was looking to use?

[Aaron]: Genetic genealogy.

[The Prosecutor]: Had you been familiar with genetic genealogy before
that was brought up?

[Aaron]: I was. I had followed the Golden State Killer case, it had been
in the news and I kind of watched it and had a cursory understanding of
it.

[The Prosecutor]: Did you think it might be helpful in this case?

[Aaron]: When he first approached me, he asked if we had any cases
that he felt -- or that I felt like this would work in. I said absolutely.
This is the first one that came to mind.
42
Foreman did not object to this testimony. When the same or similar evidence

is offered without objection, error is not preserved. See Ethington v. State, 819

S.W.2d 854, 858 (Tex. Crim. App. 1991); Tex. R. App. P. 33.1(a). Therefore, this

objection was not preserved.

We overrule Foreman’s final issue.

CONCLUSION

Having overruled all of Foreman’s issues, we affirm the trial court’s

judgment.

AFFIRMED.

JAY WRIGHT
Justice

Submitted on November 5, 2025
Opinion Delivered January 7, 2026
Do Not Publish

Before Johnson, Wright and Chambers, JJ.

43