                                                                               ACCEPTED
                                                                           09-16-00495-CR
                                                                NINTH COURT OF APPEALS
                                                                       BEAUMONT, TEXAS
                                                                        12/13/2017 3:26 PM
                                                                    CAROL ANNE HARLEY
                                                                                    CLERK

                  NO. 09-16-00495-CR

           IN THE COURT OF APPEALS FOR THE 9TH            FILED IN
              DISTRICT OF TEXAS AT BEAUMONT        9th COURT OF APPEALS
                                                       BEAUMONT, TEXAS
                                                   12/13/2017 3:26:17 PM
                                                     CAROL ANNE HARLEY
          GALEN DWAYNE BAUGUS,          Appellant,          Clerk

                            v.

            THE STATE OF TEXAS, Appellee.


                       Arising from:

               Cause No. 14-07-08281-CR
              IN THE 221ST DISTRICT COURT,
              MONTGOMERY COUNTY, TEXAS


             STATE’S APPELLATE BRIEF


                                       BRETT W. LIGON
                                       District Attorney
                                       Montgomery County, Texas

                                       NANCY HEBERT
                                       Assistant District Attorney
                                       Montgomery County, Texas

                                       BRENT CHAPELL
                                       Assistant District Attorney
                                       Montgomery County, Texas
                                       T.B.C. No. 24087284
                                       207 W. Phillips, Second Floor
                                       Conroe, Texas 77301
                                       936-539-7800
                                       936-788-8395 (FAX)
                                       brent.chapell@mctx.org

ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
                     IDENTITY OF PARTIES AND COUNSEL
      Pursuant to Tex. R. App. P. 38.2, the State hereby supplements the

appellant’s list of parties to this appeal with the names of all trial and appellate

counsel for the State:


District Attorney:                                 BRETT W. LIGON
                                                   District Attorney
                                                   Montgomery County, Texas
                                                   207 W. Phillips, Second Floor
                                                   Conroe, Texas 77301

Counsel for the State in the trial court:          NANCY HEBERT
                                                   JEFF HOHL
                                                   Assistant District Attorneys
                                                   Montgomery County, Texas
                                                   207 W. Phillips, Second Floor
                                                   Conroe, Texas 77301

Counsel for the State in the appellate courts:     BRENT CHAPELL
                                                   Assistant District Attorney
                                                   Montgomery County, Texas
                                                   207 W. Phillips, Second Floor
                                                   Conroe, Texas 77301




                                            ii
                                         TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................................ ii

TABLE OF CONTENTS ......................................................................................... iii

INDEX OF AUTHORITIES ......................................................................................v

STATEMENT OF THE CASE...................................................................................1

STATEMENT OF FACTS .........................................................................................1

SUMMARY OF THE STATE’S ARGUMENT.........................................................4

ARGUMENTS AND AUTHORITIES ......................................................................6

     I.    The trial court did not reversibly err by denying the
           appellant’s motion for continuance to allow an expert more
           time to review inconsequential DNA findings. .............................................6

     II. The trial court did not abuse its discretion by admitting
         evidence related to an extraneous sexual assault of a child
         under article 38.37.........................................................................................8

           A. The appellant sexually assaulted K.B. when she was a
              child. ....................................................................................................10

           B.     The appellant failed to preserve his constitutional claims. ................. 11

           C.     Courts have consistently upheld article 38.37 in the face
                  of constitutional challenges. ................................................................12

     III. The trial court did not abuse its discretion by concluding that
          the probative value of the extraneous offense evidence was
          not substantially outweighed by the danger of unfair
          prejudice. .....................................................................................................14




                                                            iii
IV. The trial court did not abuse its discretion by permitting Dr.
    Lawrence Thompson’s testimony. ...............................................................16

     A. Dr. Thompson is qualified to testify as an expert about
        child sexual abuse................................................................................17

     B.     Any error in allowing Dr. Thompson to quantify the
            frequency in which he experiences children falsely
            alleging sexual abuse was not preserved and did not harm
            the appellant. .......................................................................................18

V. The trial court did not reversibly err by exempting an expert
   from “The Rule.”.........................................................................................21

VI. The evidence is sufficient to support the jury’s verdict based
    on K.G.’s testimony and other corroborative evidence. .............................24

CONCLUSION AND PRAYER ........................................................................27

CERTIFICATE OF COMPLIANCE WITH RULE 9.4 ....................................28

CERTIFICATE OF SERVICE ...........................................................................28




                                                     iv
                                 INDEX OF AUTHORITIES

Cases
Allen v. State, 436 S.W.3d 815 (Tex. App.—Texarkana 2014, pet. ref’d) ...............23

Alvarez v. State, 491 S.W.3d 362
  (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) ...............................................12

Barshaw v. State, 342 S.W.3d 91 (Tex. Crim. App. 2011).......................................21
Belcher v. State, 474 S.W.3d 840
  (Tex. App.—Tyler 2015, no pet.) .............................................................. 9, 13, 14
Bezerra v. State, 485 S.W.3d 133
  (Tex. App.—Amarillo 2016, pet. ref’d) ........................................................ 13, 14

Briggs v. State, 789 S.W.2d 918 (Tex. Crim. App. 1990) ....................................9, 12
Briones v. State, No. 14-07-01047-CR, 2009 WL 2356626
  (Tex. App.—Houston [14th Dist.] July 30, 2009, pet. ref’d)...............................18
Burdick v. State, 474 S.W.3d 17
  (Tex. App.—Houston [14th Dist.] 2015, no pet.) ..................................................8
Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011) .............................................9
Caston v. State, No. 01-16-00260-CR, 2017 WL 3298320
  (Tex. App.—Houston [1st Dist.] Aug. 3, 2017, no pet.) ......................................13

Clark v. State, 365 S.W.3d 333 (Tex. Crim. App. 2012)..........................................12
Dowling v. United States, 493 U.S. 342 (1990) .........................................................9

Drillex Sys., Inc. v. Flores, 1 S.W.3d 112 (Tex. 1999) .............................................22

Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007)..........................................17
Gaytan v. State, 331 S.W.3d 218 (Tex. App.—Austin 2011, pet. ref’d)..................15

Giglioblanco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006)..............................14

Gonzales v. State, 304 S.W.3d 838 (Tex. Crim. App. 2010) ..................................6, 7


                                                    v
Harris v. State, 475 S.W.3d 395
  (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) ............................................13
Jackson v. Virginia, 443 U.S. 307 (1979) ................................................................24
Jones v. State, 428 S.W.3d 163
  (Tex. App.—Houston [1st Dist.] 2014, no pet.) ...................................................25

Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992) ....................................20
Long v. State, 742 S.W.2d 302 (Tex. Crim. App. 1987).............................................9

Merritt v. State, 368 S.W.3d 516 (Tex. Crim. App. 2012) .......................................25
Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) .........................................20
Murray v. State, 457 S.W.3d 446 (Tex. Crim. App. 2015) ......................................24

Pawlak v. State, 420 S.W.3d 807 (Tex. Crim. App. 2013) .......................................15
Renteria v. State, 206 S.W.3d 689 (Tex. Crim. App. 2006) ...................................7, 8
Robisheaux v. State, 483 S.W.3d 205
  (Tex. App.—Austin 2016, pet. ref’d) ............................................................ 13, 15
Russell v. State, 155 S.W.3d 176 (Tex. Crim. App. 2005) ................................ 22, 23
Shaw v. State, 329 S.W.3d 645
  (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) ............................................20

Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991) ........................................9

Turner v. State, 805 S.W.2d 423 (Tex. Crim. App. 1991) ........................................19
Vela v. State, 209 S.W.3d 128 (Tex. Crim. App. 2006) ............................................17

Webb v. State, 766 S.W.2d 236 (Tex. Crim. App. 1989) ..........................................22

Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013) ......................................25




                                                    vi
Statutes
Tex. Code Crim. Proc. Ann. art. 38.07 (West Supp. 2017) ......................................25

Tex. Code Crim. Proc. Ann. art. 38.37 (West Supp. 2017) ......................................10
Tex. Penal Code Ann. § 12.42 (West Supp. 2017).....................................................1

Tex. Penal Code Ann. § 22.021 (West Supp. 2017).............................................1, 25

Rules
Fed. R. Evid. 414 .....................................................................................................13
Tex. R. App. P. 33.1............................................................................................11, 19
Tex. R. App. P. 44.2..................................................................................................20

Tex. R. Evid. 403............................................................................................... 14, 16

Tex. R. Evid. 614......................................................................................................22
Tex. R. Evid. 702......................................................................................................17




                                                          vii
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

                          STATEMENT OF THE CASE
      The appellant was charged by indictment with aggravated sexual assault of a

child 1 (C.R. 30, 398). For purposes of punishment enhancement, the indictment

further alleged that the appellant previously pleaded guilty to committing the

felony offense of sexual assault (C.R. 30, 398). The jury found the appellant guilty

and, after hearing additional evidence, found the enhancement paragraph to be true

and assessed the appellant’s punishment at imprisonment for life2 (C.R. 465).

                            STATEMENT OF FACTS
      K.G. and her brother often visited their grandparents and stayed with them

for several weeks at a time (5 R.R. 31; 6 R.R. 148). During one of those visits,

K.G.’s aunt—Angela Havard—planned on taking K.G., K.G.’s brother, and some

of their cousins—Arthur, Braeden, and Baileigh—to a local waterpark called

Splashtown (5 R.R. 42, 94; 6 R.R. 150). April Havard is the mother of Braeden

and Baileigh, and the appellant is April’s fiancé (5 R.R. 23; 7 R.R. 153). The night

before Angela took the kids to Splashtown, K.G. and her brother slept over at

April’s house with Braeden and Baileigh (6 R.R. 153).


      1
          See Tex. Penal Code Ann. § 22.021(a)(1)(B) (West Supp. 2017).
      2
        Given the finding of “true” to the enhancement allegation, the appellant
was subject to an automatic sentence of life imprisonment. See Tex. Penal Code
Ann. § 12.42(c)(2)(B)(ii) (West Supp. 2017).

                                         1
      The next morning, April went to work and left the kids under the appellant’s

supervision, despite the fact that he was serving deferred adjudication community

supervision for committing sexual assault and was not supposed to be around

children other than April’s (5 R.R. 33; 7 R.R. 198). Baileigh had basketball camp

that morning, so the appellant drove her in his Chevrolet Silverado to the

basketball camp at a nearby high school, and K.G. rode along with them (6 R.R.

157; 7 R.R. 230). K.G. was wearing pajamas and one of Baileigh’s robes (6 R.R.

154–55). After dropping off Baileigh, the appellant asked K.G. to sit in the front

seat, so she relocated there from the back seat (6 R.R. 158).

      K.G. testified that on the short drive back to April’s house, the appellant

stopped at a stop sign, told K.G. to open her legs, moved her shorts and panties to

the side, and used his finger to touch “inside” K.G.’s vagina, “where [her] hole is,”

“past the fatter outer lips” (6 R.R. 159–63, 164–65). The appellant moved his hand

“up and down” while asking K.G., who was nine years old, “do you like that?” (6

R.R. 167). K.G. eventually told the appellant to stop, and he replied “do you want

to try anything else?” (6 R.R. 167). When K.G. declined, the appellant drove them

back to April’s house and instructed K.G. to take a shower (6 R.R. 167, 169). K.G.

recalled that her vagina “stung” when she urinated, and she hypothesized that

something was on the appellant’s hands (6 R.R. 169). When Angela arrived to take




                                          2
the kids to Splashtown, she noted that K.G. had just taken a shower and had wet

hair, which was odd given that they planned to go to the pool (5 R.R. 101–02).

      After the assault, K.G. felt “nervous” and “embarrassed,” and she hesitated

to tell anyone about it because she “didn’t want to ruin anyone’s day” (6 R.R. 168,

172). But “the whole thing” was on K.G.’s mind throughout the day (6 R.R. 173).

That night, after returning from Splashtown, K.G. got into bed with her

grandmother and told her what had happened (6 R.R. 178).            This revelation

included details such as the appellant’s questions to K.G. during the assault, where

the assault occurred, where the appellant put his finger inside K.G.’s vagina, and

that the appellant told K.G. to take a shower (5 R.R. 150–51). K.G.’s grandparents

called her mother, Wendy Gonzales, and K.G tearfully told Wendy what had

happened (5 R.R. 49; 6 R.R. 180). Based on that conversation, Wendy and K.G.’s

father—who was then estranged from Wendy—immediately drove in the middle of

the night from San Antonio to the grandparents’ house in Porter (5 R.R. 47).

      K.G.’s parents reported the outcry to police (5 R.R. 53), and Detective Todd

Hoff of the Montgomery County Sheriff’s Office set up a forensic interview and

sexual assault nurse examination (SANE) for K.G. and her brother (6 R.R. 63, 65,

73). Hoff confirmed from K.G.’s brother’s interview that K.G. had taken a shower

after dropping off Baileigh at basketball camp with the appellant (6 R.R. 91–93).




                                         3
Hoff also swabbed for potential DNA several portions of the appellant’s truck and

the robe K.G. wore during the assault (6 R.R. 95–96, 98).

      The SANE nurse testified that, during the examination, K.G. relayed that

“[the appellant] touched me with his finger in the girl’s part right there” while

pointing to female genitalia on a diagram (7 R.R. 128). K.G. further recalled that

“[the appellant] pulled my shorts over and my panties and started digging”; and he

asked if she liked it and whether she wanted to try something else (7 R.R. 128).

K.G. also conveyed that it hurt while she urinated after the assault (7 R.R. 128).

                  SUMMARY OF THE STATE’S ARGUMENT
      Reply to Point of Error One: The trial court did not reversibly err in

denying the appellant’s motion for continuance to allow a defense expert more

time to review the DNA findings. The appellant has shown neither what further

review would have revealed nor how more time would have benefitted his defense,

especially given that the State agreed and presented to the jury that the DNA

findings did not implicate the appellant in this case.

      Reply to Point of Error Two: The appellant failed to preserve his

constitutional challenge to article 38.37, section 2(b) of the Code of Criminal

Procedure, because the appellant never argued at trial that the admission of

evidence that he sexually assaulted another child violated his right to due process.




                                           4
And even if error had been preserved, this Court need not stray from its sister

courts in upholding the constitutionality of section 2(b).

      Reply to Point of Error Three: The appellant’s main defensive theory at

trial was that K.G. fabricated the allegations of sexual assault. Thus, evidence that

the appellant sexually assaulted another child was relevant to show that K.G. was

not lying, and therefore, that the appellant sexually assaulted K.G. in this case.

Given the procedural safeguards limiting the prejudicial impact of such evidence,

the trial court did not abuse its discretion in overruling the appellant’s Rule 403

objection.

      Reply to Point of Error Four: Dr. Lawrence Thompson, Jr., is educated and

trained in the area of child sexual abuse, has vast clinical experience in treating

child sexual abuse victims, and has testified as a child sexual abuse expert in

numerous cases. Thus, he is well qualified to provide expert testimony in cases

involving child sexual abuse. And insofar as the appellant preserved error, any

error in allowing Thompson to quantify—based on his clinical experience—the

occurrence of false allegations in child sexual abuse cases was harmless.

      Reply to Point of Error Five: Any error in allowing K.G.’s counselor, Jacy

Palmitier, to remain in the courtroom during the testimony of K.G. and Dr.

Thompson did not have a substantial and injurious effect on the jury’s verdict.

Palmitier’s testimony merely recalled her conversations with K.G. and did not

                                          5
reference anyone else’s testimony, and K.G.’s account of the sexual abuse was

consistent and unwavering from her first outcry through her testimony at trial.

       Reply to Point of Error Six: K.G. unequivocally testified, consistent with

her prior statements to other witnesses, that the appellant inserted his finger inside

K.G.’s vagina when she was nine years old. Thus, the jury could reasonably find

K.G. to be credible, and the evidence is sufficient to support the appellant’s

conviction for aggravated sexual assault of a child.

                      ARGUMENTS AND AUTHORITIES
I.     The trial court did not reversibly err by denying the appellant’s motion
       for continuance to allow an expert more time to review inconsequential
       DNA findings.

       The appellant’s first point argues that the trial court erroneously denied his

motion for continuance, thus denying him the opportunity to investigate potential

DNA issues with the case (Appellant’s brief at 8–9). This request stems from the

appellant’s inability to obtain portions of the DNA analysis records until the time

of trial.

       To show reversible error predicated on the denial of a pretrial motion for

continuance, “a defendant must demonstrate both that the trial court erred in

denying the motion and that the lack of a continuance harmed him.” Gonzales v.

State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010). The resolution of a pretrial

motion for continuance for the purpose of securing expert assistance is


                                          6
“particularly within the discretion of the trial court.” Id. at 843–44 (emphasis in

original). And a defendant must show “specific prejudice to his defense” to

establish that the trial court abused its discretion in refusing to grant a continuance.

Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006).

      The DNA evidence in this case did not inculpate the appellant—the swabs

taken from the robe K.G. wore during the assault excluded the appellant as a

contributor, and the swabs taken from the truck excluded K.G. as a contributor (7

R.R. 152–54). It is unclear what the appellant seeks to glean from expert review of

the entirety of the DNA records. Moreover, the record does not show that the

appellant made any effort to have an expert review the data after the trial, and the

contents of such a review are not before this Court.

      The appellant’s claims of prejudice are general and lack the level of

specificity required to entitle him to a new trial. See Gonzales, 304 S.W.3d at 842

(discussing “considerable specificity” required to establish harm due to the denial

of a continuance). The appellant has suggested actual prejudice because “no

independent review of the underlying DNA data was able to be conducted”

(Appellant’s brief at 12), but the appellant has not suggested how or why such

review was necessary to further his defense. Rather, the appellant appears to

concede that any potential benefit is merely speculative: “In truth, because the trial

court denied Appellant’s continuance, it is unknown what information might have

                                           7
been gleaned from the independent expert’s review of the DNA files” (Appellant’s

brief at 12) (emphasis added).

       Such a generalized showing—without any suggestion of what the expert’s

review would have uncovered—fails to establish that the trial court abused its

discretion by denying the motion for continuance. See Renteria, 206 S.W.3d at

699; see also Burdick v. State, 474 S.W.3d 17, 25 (Tex. App.—Houston [14th Dist.]

2015, no pet.) (finding no reversible error in denial for continuance where the

additional evidence the defendant sought was not material to his case). Because

the appellant has failed to show that the trial court abused its discretion by denying

his motion for continuance on the week of trial, this Court should overrule the

appellant’s first issue.

II.    The trial court did not abuse its discretion by admitting evidence related
       to an extraneous sexual assault of a child under article 38.37.

       The appellant’s second point argues that the trial court erred by admitting

evidence during the guilt phase of trial related to the appellant’s sexual assault of

another child, K.B. (Appellant’s brief at 12–13). The appellant does not suggest

that the nature of the extraneous crime does not fall within the purview of article

38.37 of the Code of Criminal Procedure, but instead argues that the admission of

such evidence violated his constitutional rights to due process and the due course

of law (Appellant’s brief at 13). The appellant contends that the trial court’s ruling


                                          8
deprived him of the right to an impartial jury by infringing on the presumption of

innocence and lowering the State’s burden of proof (Appellant’s brief at 13).

      The due process clause requires the State to prove every element of a

charged crime beyond a reasonable doubt. Byrd v. State, 336 S.W.3d 242, 246

(Tex. Crim. App. 2011). Generally, the State must try an accused only for the

charged offense and not for a collateral crime or being a criminal generally.

Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991). The essential

guarantee of due process is that the government may not imprison or otherwise

physically restrain a person except in accordance with fair procedures. Long v.

State, 742 S.W.2d 302, 320 (Tex. Crim. App. 1987), overruled on other grounds,

Briggs v. State, 789 S.W.2d 918, 921 (Tex. Crim. App. 1990). To establish a due

process violation, the appellant must show “that the challenged statute or rule

violates those ‘fundamental conceptions of justice which lie at the base of our civil

and political institutions and which define the community’s sense of fair play and

decency.’” Belcher v. State, 474 S.W.3d 840, 843 (Tex. App.—Tyler 2015, no pet.)

(quoting Dowling v. United States, 493 U.S. 342, 353 (1990)).

      Article 38.37 provides that in trials for certain sexual offenses:

      Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and
      subject to Section 2-a, evidence that the defendant has committed a
      separate offense described by Subsection (a)(1) or (2) [including
      sexual assault of a child] may be admitted in the trial of an alleged
      offense described by Subsection (a)(1) or (2) [including aggravated
      sexual assault of a child] for any bearing the evidence has on relevant
                                          9
      matters, including the character of the defendant and acts performed
      in conformity with the character of the defendant.

Tex. Code Crim. Proc. Ann. art. 38.37, § 2(b) (West Supp. 2017). Section 2-a

provides a procedural safeguard by requiring the trial court, before admitting

evidence described by section 2, to: (1) determine that the evidence likely to be

admitted will be adequate to support a finding by the jury that the defendant

committed the separate offense beyond a reasonable doubt; and (2) conduct a

hearing outside the presence of the jury for that purpose. Id. art. 38.37, § 2-a.

      A.     The appellant sexually assaulted K.B. when she was a child.

      In a hearing outside the presence of the jury, the State proffered evidence

regarding an extraneous offense committed by the appellant against K.B. 3 That

evidence showed that in 2003, when K.B. was sixteen years old and the appellant

was an adult, K.B. went to a bonfire party where she drank alcohol and met the

appellant (4 R.R. 4; 3 MAJ R.R. 16–17). K.B. rode a four-wheeler with the

appellant and at some point stopped and got ants all over her pants (4 R.R. 5; 3

      3
         K.B. testified extensively in a motion to adjudicate hearing stemming from
a separate sexual assault case, in trial court cause number 08-12-11826-CR, and in
which the appellant previously pleaded guilty in exchange for the State’s
recommendation of community supervision. The adjudication hearing took place
the week prior to trial in this case. The trial court allowed the State to proffer the
same evidence in this case and specifically referred back to the court’s knowledge
of the testimony from that hearing (4 R.R. 4–5). Accordingly, the State has filed in
this Court a motion to consider the record from the adjudication hearing for
purposes of deciding this appeal. This brief designates citations to the record of
the adjudication hearing as “MAJ.”

                                          10
MAJ R.R. 18). When K.B. removed her pants in an attempt to shake off the ants,

the appellant and his friend came over and started touching her (4 R.R. 5; 3 MAJ

R.R. 20). The appellant touched K.B.’s vagina while his friend fondled her breasts

(3 MAJ R.R. 20). K.B. told them to stop and asked to go back to the bonfire (3

MAJ R.R. 21).

      But when they arrived at the bonfire, no one else was there, so K.B. told the

appellant to take her home (3 MAJ R.R. 21–22). The appellant took K.B. to his

house, and at that point, she started to “black out” (3 MAJ R.R. 22).         K.B.

remembered the appellant telling her she could not ride in his truck while she was

“filthy” (3 MAJ R.R. 22–23). K.B. also remembered waking up in the shower,

naked, while the appellant and his friend stared at her (3 MAJ R.R. 23). K.B.

remembered next lying on the appellant’s bed, and the appellant was on top of her,

“raping [her,]” by having vaginal intercourse (4 R.R. 6; 3 MAJ R.R. 24). As he

molested K.B., the appellant looked back at his friend and told him that K.B. had

“a nice tight ass” (3 MAJ R.R. 24). K.B. woke up the next morning and asked the

appellant to take her home, but the appellant dropped K.B. off about three blocks

from her destination (3 MAJ R.R. 25).

      B.    The appellant failed to preserve his constitutional claims.

      A party must timely and specifically object to preserve error for appeal. See

Tex. R. App. P. 33.1(a)(1)(A). Even constitutional errors—including due process

                                        11
and due course of law challenges—may be forfeited by failing to object at trial.

See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (failure to object

to violation of due process right to fair trial waived error); Briggs, 789 S.W.2d at

924.

       Here, the appellant did not object on grounds that the trial court’s admission

of the evidence related to his sexual assault of K.B. violated his right to an

impartial jury, infringed upon the presumption of innocence, or lowered the State’s

burden of proof. He instead limited his objections to article 38.37 and Rule of

Evidence 403 (6 R.R. 225). These objections did not preserve his claim on appeal

that the admission of extraneous offense evidence violated his constitutional rights

to due process and the due course of law. See Alvarez v. State, 491 S.W.3d 362,

368–69 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (failure to raise due

process challenge to art. 38.37, § 2(b), at trial did not preserve claim on appeal).

       C.    Courts have consistently upheld article 38.37 in the face of
             constitutional challenges.

       Even if this Court assumes for argument’s sake that the appellant preserved

his constitutional claims, multiple courts of appeals have held that article 38.37,

section 2 does not violate a defendant’s rights to due process and due course of law.

       For example, in Belcher, the Twelfth Court of Appeals addressed the

constitutionality of article 38.37, section 2, of the Code of Criminal Procedure. See

Belcher, 474 S.W.3d at 843.         The court reviewed the history of character-
                                          12
propensity evidence and the fact that a federal statute with “virtually the same

effect has been upheld in the face of constitutional challenges.” See id. at 846

(discussing Fed. R. Evid. 414(a)).      In rejecting the defendant’s constitutional

challenge, the court noted the unique evidentiary concerns in child sexual abuse

cases, and ultimately reasoned that section 2(b) is more narrowly drawn than its

federal counterpart and has several procedural safeguards that “protect the

defendant against the admission of evidence that is so prejudicial as to deprive the

defendant of a fair trial.” Id. at 847. Several other intermediate courts of appeals

have addressed similar constitutional challenges to section 2(b) and have uniformly

upheld its constitutionality. See, e.g., Caston v. State, No. 01-16-00260-CR, 2017

WL 3298320, at *8 (Tex. App.—Houston [1st Dist.] Aug. 3, 2017, no pet.) (not yet

published); Bezerra v. State, 485 S.W.3d 133, 139–40 (Tex. App.—Amarillo 2016,

pet. ref’d); Robisheaux v. State, 483 S.W.3d 205, 209 (Tex. App.—Austin 2016,

pet. ref’d); Harris v. State, 475 S.W.3d 395, 403 (Tex. App.—Houston [14th Dist.]

2015, pet. ref’d).

      The appellant has not raised novel arguments to convince this Court to stray

from its sister courts. Thus, article 38.37, section 2(b), does not deprive the

appellant of his right to due process, and this Court should reject his constitutional

challenge.




                                         13
III.   The trial court did not abuse its discretion by concluding that the
       probative value of the extraneous offense evidence was not substantially
       outweighed by the danger of unfair prejudice.

       The appellant’s third issue argues that evidence of the extraneous sexual

assault of K.B. was inadmissible under Rule of Evidence 403.

       One of the procedural safeguards of article 38.37 is that evidence admitted

pursuant to section 2(b) is still subject to a Rule 403 analysis. See Belcher, 474

S.W.3d at 847. Rule 403 provides that a trial court may exclude otherwise relevant

evidence if the probative value of that evidence is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, misleading the jury, undue

delay, or the needless presentation of cumulative evidence. Tex. R. Evid. 403.

When conducting a Rule 403 analysis, the trial court must balance:

       (1) the inherent probative force of the proffered item of evidence
       along with (2) the proponent’s need for that evidence against (3) any
       tendency of the evidence to suggest decision on an improper basis, (4)
       any tendency of the evidence to confuse or distract the jury from the
       main issues, (5) any tendency of the evidence to be given undue
       weight by a jury that has not been equipped to evaluate the probative
       force of the evidence, and (6) the likelihood that presentation of the
       evidence will consume an inordinate amount of time or merely repeat
       evidence already admitted.

Giglioblanco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). Rule 403

favors the admission of relevant evidence, and there is a presumption that relevant

evidence will be more probative than prejudicial. Bezerra, 485 S.W.3d at 140. An




                                        14
appellate court reviews a trial court’s Rule 403 ruling for an abuse of discretion.

Pawlak v. State, 420 S.W.3d 807, 810 (Tex. Crim. App. 2013).

      Evidence that a defendant has sexually abused another child is relevant to

whether the defendant sexually abused the child victim in the charged case. See

Robisheaux, 483 S.W.3d at 220–21; Gaytan v. State, 331 S.W.3d 218, 228 (Tex.

App.—Austin 2011, pet. ref’d) (holding that defendant’s extraneous commission of

sexual offenses against two other children was “straightforward and directly

relevant to the only issue in the case, namely whether [the defendant] abused [the

complainant]”). Thus, evidence that the appellant previously sexually assaulted

K.B. was relevant to whether he sexually abused K.G.

      Moreover, the appellant’s primary defensive theory at trial was that K.G.

fabricated the allegations of abuse, so the appellant’s propensity to sexually assault

children was highly probative in determining K.G.’s credibility. Likewise, no

medical or physical evidence specifically corroborated K.G.’s account of the abuse,

so the need for the extraneous evidence was significant. On the other hand, the

trial court limited the potential for unfair prejudice by instructing the jury in

accordance with article 38.37 and by allowing the defense to present a rebuttal

witness—out of order and immediately after K.B. testified—to call K.B.’s account

into question.




                                         15
      Although K.B.’s testimony was likely prejudicial to the appellant’s defense,

the legislature has specifically allowed such evidence in difficult cases such as

those involving child sexual abuse, and the standard for error requires the potential

prejudice to “substantially outweigh” the probative value of the evidence. See Tex.

R. Evid. 403. Given the statutory safeguards employed by the trial court, the

appellant has failed to establish that the trial court acted outside the zone of

reasonable disagreement by concluding that the extraneous sexual assault was

admissible over the appellant’s Rule 403 objection.

      This Court should overrule the appellant’s third point of error.

IV.   The trial court did not abuse its discretion by permitting Dr. Lawrence
      Thompson’s testimony.

      The appellant’s fourth point argues that the trial court erred by allowing Dr.

Thompson to testify as an expert on child sexual abuse (Appellant’s brief at 26).

The appellant also specifically challenges Thompson’s testimony that less than

three percent of the cases in his clinical experience involve the child making a false

allegation (Appellant’s brief at 26, 44).

      A party may challenge expert testimony on at least three specific grounds:

(1) the expert lacks qualification due to inadequate knowledge, skill, experience,

training, or education in the subject matter of the expert’s testimony; (2) the

testimony’s subject matter is inappropriate because it is unreliable; and (3) the

testimony will not assist the fact-finder in deciding the case. Vela v. State, 209
                                            16
S.W.3d 128, 131 (Tex. Crim. App. 2006); see Tex. R. Evid. 702. Courts commonly

refer to these three requirements as qualification, reliability, and relevance. Vela,

209 S.W.3d at 131. The appellant in this case objected to Thompson’s testimony

on the grounds of qualification and relevance (5 R.R. 243–44).

      A.     Dr. Thompson is qualified to testify as an expert about child
             sexual abuse.

      To be a qualified expert, a witness must have a sufficient background in a

particular field; and the trial judge must determine whether that background “goes

to the very matter on which [the witness] is to give an opinion.” Id. at 131. The

proponent must also establish that the expert has “knowledge, skill, experience,

training, or education” regarding the specific issue before the court which would

qualify the expert to give an opinion on that particular subject. Id. at 132. An

appellate court reviews a trial court’s decision to allow expert testimony for abuse

of discretion. See Gallo v. State, 239 S.W.3d 757, 765 (Tex. Crim. App. 2007).

      Here, Thompson’s curriculum vitae was admitted as evidence and shows that

he earned a master’s degree in clinical psychology and a doctoral degree in clinical

psychology (10 R.R. 57–58). He testified that he is the director of therapy and

psychological services at the Harris County Children’s Assessment Center, where

he has been employed for sixteen years, and his primary clinical focus is children

who have been physically or sexually abused (5 R.R. 219–21). Thompson had

testified in court several times as an expert in the area of child sexual abuse, the
                                         17
opinions he relied upon are generally accepted in his profession, and he had

reviewed peer-reviewed studies and articles on the topic (5 R.R. 222, 227).

Thompson’s doctoral dissertation dealt with child sexual abuse, and he had

recently published an article in the same area, although he could not remember the

specific title of the article or the specific journal in which it appeared (5 R.R. 230–

31).   Based on this evidence, the trial court did not abuse its discretion in

determining that Thompson had the necessary specialized knowledge and training

to testify as an expert in the area of child sexual abuse. See, e.g., Briones v. State,

No. 14-07-01047-CR, 2009 WL 2356626, at *3 (Tex. App.—Houston [14th Dist.]

July 30, 2009, pet. ref’d) (mem. op., not designated for publication) (“Dr.

Thompson’s academic and professional background focusing on the treatment and

observation of child victims of sexual abuse appropriately matches the subject

matter of his testimony focusing on the behavioral patterns of child victims of

sexual abuse.”).

       B.    Any error in allowing Dr. Thompson to quantify the frequency in
             which he experiences children falsely alleging sexual abuse was
             not preserved and did not harm the appellant.

       The appellant’s relevance argument rests on the following exchange:

       [The State]:      Okay. Now, with regard to false allegations, based
                         on your clinical experience, how often does a child
                         make a false allegation?

       [The appellant]: Your Honor, I object. This witness has just said he
                        doesn’t do research.
                                          18
      [The State]:       Your Honor, she has opened the door to this line of
                         questioning and I’m asking about his clinical
                         experience.

      THE COURT:         If he’s familiar though his clinical experience or
                         though studies or literature that he’s read, I will
                         allow the witness to answer the question, if he’s
                         familiar.

      [Thompson]:        I am definitely familiar with my own clinical
                         experience. And my estimation is that it is a rare
                         occurrence. It is possible, you-all, but it is a rare
                         occurrence. In my clinical experience, you know,
                         certainly less than 3 percent of the cases that I have
                         somehow been involved in have involved the child
                         making a false allegation. But again, rare, but it is
                         possible.

(6 R.R. 55–56).        Assuming without conceding that such testimony was

inadmissible, any error was not reversible.

             1.      The appellant’s non-legal objection failed to adequately inform
                     the trial court of the legal grounds entitling him to relief.

      To preserve error for appellate review, a party must make a timely, specific

objection on the record and receive an adverse ruling on that objection. See Tex.

R. App. P. 33.1(a); Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991).

To satisfy the specificity requirement, the party must “let the trial judge know what

he wants, why he thinks himself entitled to it, and . . . do so clearly enough for the

judge to understand him at a time when the trial court is in the proper position to

do something about it.” Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App.

                                         19
1992). Despite the absence of an express objection, error may be preserved if a

specific objection was apparent from the context. Shaw v. State, 329 S.W.3d 645,

655 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).

      Here, the appellant’s objection of “[t]his witness has just said he doesn’t do

research” did not sufficiently apprise the trial court that the appellant challenged

the relevance of the potential answer to the State’s question of how often children

falsely allege sexual abuse. At best, the objection addressed whether the elicited

answer was within Thompson’s personal knowledge, not whether the answer

would assist the trier of fact. And although the appellant previously challenged the

relevance of the entirety of Thompson’s testimony, the trial court did not then have

reason to believe that Thompson’s testimony would include a quantification of the

frequency of false allegations in child sexual abuse cases. The trial court was not

in the “proper position to do something about it” until the specific issue arose, but

at that time, the appellant did not properly object. He has therefore failed to

preserve error.

             2.    If the appellant had preserved error, any error was harmless.

      The admission of irrelevant evidence under Rule 702 is non-constitutional

error which must be disregarded unless it affected the appellant’s substantial rights.

See Tex. R. App. P. 44.2(b); Motilla v. State, 78 S.W.3d 352, 356 (Tex. Crim. App.

2002). An appellate court should not overturn a conviction for non-constitutional

                                         20
error if, after examining the record as a whole, the court has fair assurance that the

error did not influence the jury, or had only a slight effect. Barshaw v. State, 342

S.W.3d 91, 93 (Tex. Crim. App. 2011).

      Here, the State elicited Thompson’s quantification of how often children

falsely allege sexual abuse in response to the appellant’s introduction of evidence

on cross-examination that Thompson had previously testified that false allegations

are “extremely rare” (see 6 R.R. 41). It is highly unlikely that Thompson’s specific

quantification as to what “extremely rare” meant had a substantial effect on the

jury’s verdict even though the State referred to such testimony in closing argument.

Importantly, Thompson did not specifically relate his testimony to the facts of this

case, and this case involved a consistent, detailed, and corroborated account by a

child regarding a specific act of sexual abuse by someone she knew. This strong

evidence of guilt cures any potential error in admitting the challenged testimony.

      This Court should overrule the appellant’s fourth point of error.

V.    The trial court did not reversibly err by exempting an expert from “The
      Rule.”

      The appellant’s fifth point complains of the trial court’s decision to allow

Jacy Palmitier to sit in the courtroom during the testimony of K.G. and Dr.

Thompson (Appellant’s brief at 46). Palmitier is a licensed professional counselor

who provided K.G. with therapy services because K.G. experienced nightmares,


                                         21
sleeping issues, anxiety, and other ailments after the appellant molested her (6 R.R.

289; 7 R.R. 16, 44–45).

      Rule of Evidence 614, also known as “the Rule,” prevents witnesses from

remaining in the courtroom during the testimony of other witnesses. See Tex. R.

Evid. 614. The Rule is designed to prevent witnesses from altering their testimony,

consciously or not, based on the testimony of another witness. See Webb v. State,

766 S.W.2d 236, 239 (Tex. Crim. App. 1989). The Rule exempts from courtroom

exclusion “a person whose presence a party shows to be essential to presenting the

party’s claim or defense.” Tex. R. Evid. 614. This often includes experts, but the

designation as an expert does not automatically exempt a witness from the Rule.

See Drillex Sys., Inc. v. Flores, 1 S.W.3d 112, 116–18 (Tex. 1999). The party

seeking to exempt an expert witness from the Rule’s sequestration requirement

bears the burden to establish that the witness’s presence is essential. Id.

      However, a violation of the Rule is an evidentiary ruling that is subject to the

harm analysis for non-constitutional error. Russell v. State, 155 S.W.3d 176, 181

(Tex. Crim. App. 2005). “The question in assessing harm of allowing [a witness]

to remain in the courtroom is whether he was influenced by the testimony he

heard.” Id.

      If this Court assumes that the State failed to meet its requisite burden of

proof, any error in allowing Palmitier to remain in the courtroom was harmless.

                                          22
The appellant claims harm on the basis that Palmitier heard the testimony of two

key witnesses, and her testimony corroborated their claims (Appellant’s brief at

49). But this is insufficient to show that the trial court’s alleged error had a

substantial and injurious effect on the jury’s verdict. See Russell, 155 S.W.3d at

181; Allen v. State, 436 S.W.3d 815, 822 (Tex. App.—Texarkana 2014, pet. ref’d).

      In Allen, for example, the Sixth Court of Appeals addressed the trial court’s

decision to allow the executive director of the local Children’s Advocacy Center to

be present in the courtroom for the testimony of the victim and the medical doctor

who examined the victim in an aggravated sexual assault of a child case. See 436

S.W.3d at 822. The defendant’s principal argument as to harm was that the

witness’s testimony corroborated that of the witnesses she heard testify. See id. at

823–24. But the court of appeals rejected this claim, reasoning that the witness’s

testimony “added nothing to the child’s trial testimony with respect to the sexual

assault” at issue; the child victim was twelve years old at the time of trial, and her

clearly-articulated testimony was consistent, strong, and unwavering; the witness

admitted that the victim could have been lying; and the witness’s testimony did not

contradict the victim’s prior outcry. See id. at 824–25. Thus, because the witness

merely recalled her conversation with the victim, and did not appear to glean

anything from the victim’s testimony, any error in violating the Rule was harmless.

See id. at 825.

                                         23
      Similarly, here, Palmitier’s testimony merely recounted her conversations

with K.G. and added no meaningful details to K.G.’s account of sexual abuse; K.G.

was detailed and consistent throughout her statements to various individuals

regarding the sexual abuse; K.G. was eleven years old at the time of trial and

clearly articulated, without wavering, that the appellant digitally penetrated her

vagina. Moreover, the appellant has not alleged how Palmitier’s presence in the

courtroom during other witness’s testimony had any specific effect on Palmitier’s

subsequent testimony. Given the strength of corroborating evidence separate from

Palmitier’s testimony, this Court should be confident that allowing Palmitier to

remain in the courtroom did not substantially influence the jury’s verdict.

      The appellant’s fifth point of error should be overruled.

VI.   The evidence is sufficient to support the jury’s verdict based on K.G.’s
      testimony and other corroborative evidence.

      The appellant’s final point argues that the evidence is insufficient to support

his conviction for aggravated sexual assault of a child (Appellant’s brief at 14).

      In reviewing the sufficiency of the evidence, an appellate court determines

whether, viewing “all the evidence in the light most favorable to the verdict, any

rational trier of fact could have found the essential elements of the offense beyond

a reasonable doubt.” Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.

2015); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979). The sufficiency

standard requires deference to the jury’s role as the sole judge of the witnesses’
                                          24
credibility and the weight to be given their testimony. Winfrey v. State, 393 S.W.3d

763, 768 (Tex. Crim. App. 2013). When the record supports conflicting inferences,

the court must presume that the jury resolved the conflicts in favor of the verdict

and defer to that determination. Merritt v. State, 368 S.W.3d 516, 525–26 (Tex.

Crim. App. 2012).

      A person commits the offense of aggravated sexual assault of a child, as

relevant in this case, if the person intentionally or knowingly causes the penetration

of the sexual organ of a child by any means, and the victim is younger than

fourteen years of age. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) (West Supp.

2017).   It is well settled that a child sexual abuse victim’s uncorroborated

testimony is sufficient to support a conviction for aggravated sexual assault of a

child. See Tex. Code Crim. Proc. Ann. art. 38.07 (West Supp. 2017); Martinez v.

State, 178 S.W.3d 806, 814 (Tex. Crim. App. 2005). “The State has no burden to

produce any corroborating or physical evidence.” Jones v. State, 428 S.W.3d 163,

169 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Additionally, courts liberally

construe the testimony provided by child victims of sexual abuse: “as long as the

child communicates to the jury that the touching occurred on a part of the body

within the definition of the statute, the evidence will be sufficient.” Id.

      In this case, K.G. unequivocally testified that she was only nine years old

when the appellant waited until they were alone in his truck, asked K.G. to ride in

                                          25
the front seat, and sexually assaulted her when they paused at a stop sign after

taking K.G.’s cousin to basketball camp. K.G. explicitly recalled that the appellant

put his finger inside her vagina, moved it up and down, and asked whether she

liked it and wanted to try something else. After her rejection, the appellant ordered

K.G. to take a shower, and it hurt K.G. when she urinated. This evidence alone is

sufficient to establish that the appellant caused the penetration of K.G.’s vagina by

inserting his finger.

      Yet, additional evidence corroborated the circumstances surrounding the

assault. Although some of the corroborative testimony relied on K.G.’s outcry, the

consistency of K.G.’s detailed report of the sexual abuse throughout the ensuing

investigation indicates that K.G. was telling the truth. Moreover, several witnesses

confirmed many of the facts surrounding K.G.’s account of the assault, including

that K.G. rode with the appellant in his truck to take Baileigh to basketball camp,

K.G. was wearing pajamas and Baileigh’s robe, K.G. took a shower when they

returned, the kids went to Splashtown later that day, and K.G.’s demeanor changed

after the assault. This corroborative evidence showing the appellant’s access and

opportunity to molest K.G. supports the jury’s determination that K.G. was

credible, and this Court should not invade the jury’s role to make such credibility

determinations.     So the evidence was sufficient to support the appellant’s

conviction, and this Court should overrule his sixth point of error.

                                         26
                         CONCLUSION AND PRAYER
      It is respectfully submitted that all things are regular and the judgment of the

trial court should be affirmed.

                                                    BRETT W. LIGON
                                                    District Attorney
                                                    Montgomery County, Texas


                                                    /s/ Brent Chapell
                                                    BRENT CHAPELL
                                                    T.B.C. No. 24087284
                                                    Assistant District Attorney
                                                    Montgomery County, Texas
                                                    207 W. Phillips, Second Floor
                                                    Conroe, Texas 77301
                                                    936-539-7800
                                                    936-788-8395 (FAX)
                                                    brent.chapell@mctx.org




                                         27
             CERTIFICATE OF COMPLIANCE WITH RULE 9.4
      I hereby certify that this document complies with the requirements of Tex. R.

App. P. 9.4(i)(2)(B) because there are 6,482 words in this document, excluding the

portions of the document excepted from the word count under Rule 9.4(i)(1), as

calculated by the Microsoft Word computer program used to prepare it.



                                                  /s/ Brent Chapell
                                                  BRENT CHAPELL
                                                  Assistant District Attorney
                                                  Montgomery County, Texas


                        CERTIFICATE OF SERVICE
      I hereby certify that a true and correct copy of the foregoing instrument was

served via efile.txcourts.gov to Inger Chandler, counsel for the appellant, at

inger@ingerchandlerlaw.com on the date of the submission of the original to the

Clerk of this Court.



                                                  /s/ Brent Chapell
                                                  BRENT CHAPELL
                                                  Assistant District Attorney
                                                  Montgomery County, Texas




                                        28
