COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-16-00305-CR
DAVID WILBANKS APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 16TH DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. F16-1258-16
MEMORANDUM OPINION1
I. INTRODUCTION
Appellant David Wilbanks appeals his convictions and sentences for
sexual assault and for continuous sexual abuse of a child. Wilbanks raises
1 See Tex. R. App. P. 47.4. seven issues challenging various evidentiary rulings by the trial court.2 Because
Wilbanks’s complaints are either not preserved for our review or do not raise any
reversible error, we will affirm the trial court’s judgment.
II. BRIEF FACTUAL AND PROCEDURAL BACKGROUND
When she was fourteen years old, Gloria3––who had lived with Wilbanks
from time to time while he financially and emotionally supported her family––told
her best friend’s mother that Wilbanks had repeatedly performed sexual acts with
her, beginning with fondling when she was six years old and continuing until the
time of her outcry. At the urging of her friend’s mother, Gloria told her own
mother, who contacted the police.
As part of an investigation by both the police and Child Protective
Services, Lori Nelson conducted a forensic interview of Gloria. During the
interview, Gloria provided details about what Wilbanks had done to her. Gloria
told Nelson that Wilbanks began digitally penetrating her when she was six and
that he began having intercourse with her when she was about eight or nine,
which continued until she was fourteen.
Ultimately, a grand jury issued a three-count indictment charging Wilbanks
with (1) indecency with a child by engaging in sexual contact with Gloria when
Wilbanks’s contentions are sometimes urged under more than one issue; 2
we address them and the nuanced variations between them as necessary to dispose of all Wilbanks’s issues and overlapping arguments. 3 We use a pseudonym to refer to the complainant. See McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
2 she was younger than seventeen (Count One); (2) continuous sexual abuse of
Gloria before she turned fourteen (Count Two); and (3) sexually assaulting Gloria
when she was younger than seventeen (Count Three). See Tex. Penal Code
Ann. §§ 21.02, 21.11(a)(2), 22.011(a)(2)(C) (West Supp. 2017). After a trial, a
jury found Wilbanks not guilty of Count One but guilty of Counts Two and Three
and assessed his punishment at fifty years’ confinement for Count Two and at
twenty years’ confinement for Count Three. The trial court sentenced Wilbanks
in accordance with the jury’s assessment and ordered the sentences to run
consecutively. This appeal followed.
III. STANDARD OF REVIEW AND LAW ON PRESERVATION4
A trial court’s decision concerning the admission or exclusion of evidence
and concerning the extent of cross-examination is reviewed under an abuse-of-
discretion standard. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App.
2011) (concerning the admission or exclusion of evidence); Cantu v. State, 939
S.W.2d 627, 635 (Tex. Crim. App.) (concerning the extent of cross-examination),
cert. denied, 522 U.S. 994 (1997). A trial court abuses its discretion when its
decision falls outside the zone of reasonable disagreement. Green v. State, 934
S.W.2d 92, 102 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997).
4 These two standards of review apply to Wilbanks’s issues on appeal— because they all challenge evidentiary rulings—and to the State’s numerous contentions on appeal that many of Wilbanks’s issues are not preserved for our review. Consequently, we set forth these standards once but apply them throughout the analysis sections of our opinion.
3 To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d
670, 674 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1461 (2016). The
proponent also has the responsibility to “at the earliest opportunity, [do]
everything necessary to bring to the judge’s attention the evidence rule [or
statute] in question and its precise and proper application to the evidence in
question.” Bonilla v. State, 452 S.W.3d 811, 817 (Tex. Crim. App. 2014). A
complaint is not preserved “if the legal basis of the complaint raised on appeal
varies from the complaint made at trial.” See Lovill v. State, 319 S.W.3d 687,
691–92 (Tex. Crim. App. 2009). To determine whether a complaint on appeal
comports with a complaint made at trial, we consider the context in which the
complaint was made and the parties’ shared understanding at that time. Clark v.
State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). A reviewing court should
not address the merits of an issue that has not been preserved for appeal. Ford
v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).
IV. REFUSAL TO PERMIT QUESTIONING OF GLORIA ABOUT INSTANCES OF SEXUAL TOUCHING OR SEXUAL BEHAVIOR BY OTHERS
In his first issue, Wilbanks contends that the trial court violated his
Confrontation Clause and Due Process rights under the United States
Constitution by refusing to permit him to cross-examine Gloria “about other
4 instances in which she alleged inappropriate touching and revealed it to her
family.” Wilbanks contends this allegedly erroneous ruling constitutes reversible
error because the evidence went to Gloria’s credibility5 and was admissible to
correct a false impression created by Gloria—that she did not make an earlier
outcry because she was scared and did not know what to do. The State argues
that Wilbanks failed to preserve his Confrontation Clause and Due Process
complaints because he did not raise them in the trial court. We first address the
State’s lack-of-preservation contentions.
A. Confrontation Clause Violation and Due Process Complaints Not Preserved
Prior to voir dire, Wilbanks’s counsel informed the trial court that Gloria had
referenced three incidents involving three other perpetrators during Nelson’s
forensic interview of her.6 Wilbanks requested permission to voir dire the jury
“about a credibility issue if someone makes allegations against multiple persons
versus one person” despite the motion in limine granted for the State concerning
this issue. The trial court voiced concern that the proposed question would be an
impermissible commitment question and that it would also violate rule 412. See
Tex. R. Evid. 412. The trial court told Wilbanks’s counsel that she could ask the
5 To the extent that Wilbanks contends the Confrontation Clause was violated by his inability to attack Gloria’s credibility concerning whether she knew how to report inappropriate touching, we address this credibility argument with his false-impression argument. 6 The interview was not admitted into evidence.
5 panel about credibility in general but not in reference to whether a person had
made allegations against others in the past.
Wilbanks requested a bench conference during his cross-examination of
Gloria; he sought the trial court’s permission to cross-examine Gloria about the
three incidents involving other alleged perpetrators. Specifically, Wilbanks
argued that he wanted to establish for the jury that with those incidents, Gloria
had told someone right away:
[Wilbanks’s Counsel]: . . . I think it’s important that the jury know that she has had situations in which she had been -- I mean, I know this is tough territory, Your Honor. However, she was not hesitant to reveal inappropriate touching in these other three instances. And I think the jury needs to hear that.
THE COURT: For what purpose?
[Wilbanks’s Counsel]: Because she’s acted like, I’m scared, I didn’t know what to do. Yet she had three other incidences that happened even younger than six years of age that she knows how to respond to those situations. So she can’t -- and one, under oath, she can't say without being confronted about it that she doesn’t know what to do about it when she has three previous incidences where she reveals right away.
THE COURT: Isn’t that trying to impeach her as to a collateral matter?
[Wilbanks’s Counsel]: It’s not a collateral matter, Your Honor. She’s testified --
THE COURT: It’s not in this case. Doesn’t involve this Defendant. Doesn’t involve the allegations made in this case.
[Wilbanks’s Counsel]: It involves her ability to make claims about what happened to her. Because if she’s now just saying that all these things happened and she didn’t know what to do, that’s dishonest because she does know what to do. And that is not a
6 collateral matter here. That goes straight to the heart of her credibility.
THE COURT: Response?
[State’s Counsel]: I don’t think that it’s relevant, Your Honor. And it is a kind of a way to attack her. As far as these other allegations go, at the end of the forensic interview, the forensic interviewer usually asks, Oh, and after what we’ve talked about, were there any other instances where someone has touched you inappropriately. And she revealed other instances.
Those other instances haven’t been things that haven’t been -- it’s not that they’re not substantiated. The police investigated this certain particular incident. And as far as when she -- in the forensic interview she makes claims of telling her mom about [an incident] and telling her brother about when another [person] touched her.
The last situation was when she was a teenager. And the first time that she had told the -- it was in the forensic interview, I believe, as to that. But this all just seems not relevant. And it just seems to prejudice the jury to these other claims made against other individuals. It’s not relevant to this Defendant.
....
[Wilbanks’s Counsel]: Your Honor, this goes directly to this witness’s credibility. . . .
When she’s telling this jury -- and I hate to do this in front of her because it feels like child abuse to me. But when she tells this jury that she didn’t know what to do or when the first thing happened, she ran out and brothers were right there. She says nothing. And she acts like she didn’t know what to do. Yet three different times she knows what to do. That’s absolutely relevant to this case. Completely relevant.
THE COURT: Prior to that occasion?
[Wilbanks’s Counsel]: Yes.
THE COURT: Well, I thought we just heard that one of them was since she’s been a teenager?
7 [Wilbanks’s Counsel]: I’m sorry, one of them was when she was a kid before . . . .
THE COURT: That’s prior to the first incident that happened ...?
[Wilbanks’s Counsel]: Regardless, we don’t know when the actual situation --
THE COURT: Maybe none of those other people told her not to say anything.
[State’s Counsel]: That’s right.
THE COURT: I don’t know. I don’t know what the facts are of those other instances. And I think it’s going to be -- it’s very prejudicial. And I don’t think that it’s proper fodder for impeachment. And I’m not going to let you ask her about it. [Emphasis added.]
Thus, at trial, Wilbanks’s counsel urged the trial court to allow her to
question Gloria about the incidents involving other perpetrators to show that
Gloria was being untruthful when she testified that she had not told anyone about
the sexual abuse by Wilbanks because she was scared and did not know what to
do. The trial court’s questions and responses indicate that the trial court
understood the main focus of Wilbanks’s argument to be Gloria’s credibility,
which gave rise to the trial court’s concern about proper impeachment. See
Resendez v. State, c, 315–16 (Tex. Crim. App. 2009) (analyzing responses of
trial court and State in context to determine what each understood appellant’s
complaints to be).
Wilbanks’s trial objection did not clearly articulate Confrontation Clause or
Due Process grounds, nor does the context of the exchange indicate that either
8 the trial judge or the State understood that Wilbanks’s objection was based on
Confrontation Clause or Due Process grounds. Although Wilbanks’s counsel
referred to “confronting” the witness, it was in the context of arguing that Gloria
had left a false impression with the jury and should be questioned about whether
she was telling the truth about being scared and not knowing what to do; that is
that he should be able to impeach her concerning her truthfulness. Because
Wilbanks’s Confrontation-Clause and Due-Process-rights appellate arguments
were not raised at trial, they were not preserved for our review. See Leza v.
State, 351 S.W.3d 344, 360–61 (Tex. Crim. App. 2011) (holding that appellant
failed to preserve constitutional argument raised on appeal because “he never
alerted the trial court in any way that exclusion of the statement would violate any
federal constitutional right”); Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim.
App. 2005) (“Because [appellant] ‘did not clearly articulate’ that the Confrontation
Clause demanded admission of the evidence, the trial judge ‘never had the
opportunity to rule upon’ this rationale.”).
Wilbanks’s evidentiary arguments in the remainder of his first issue—that
the subject matter is relevant to Gloria’s credibility, is not substantially
outweighed by a danger of unfair prejudice, and is admissible to correct a false
impression—comport with the objections he made in the trial court and are
therefore preserved for our review.
9 B. Evidentiary Complaints Were Properly Overruled
We now review whether the trial court abused its discretion by not
permitting Wilbanks to question Gloria about the incidents involving other
perpetrators after she allegedly put her credibility in question and created a false
impression by testifying that she did not know what to do after Wilbanks sexually
abused her.
Specific instances of conduct cannot be used for impeachment “except to
expose bias, correct any affirmative misrepresentations made on direct
examination, or demonstrate lack of capacity.” Lagrone v. State, 942 S.W.2d
602, 613 (Tex. Crim. App.), cert. denied, 522 U.S. 917 (1997). When a witness
leaves a false impression concerning a matter relating to her credibility, the
opposing party is allowed to correct that false impression. See Ramirez v. State,
802 S.W.2d 674, 676 (Tex. Crim. App. 1990). Courts, however, construe this
false-impression exception narrowly. Clay v. State, 390 S.W.3d 1, 13 (Tex.
App.—Texarkana 2012, pet. ref’d) (citing James v. State, 102 S.W.3d 162, 181
(Tex. App.—Fort Worth 2003, pet. ref’d)).
Here, on direct examination, Gloria testified that Wilbanks’s sexual abuse
of her had extended from when she was six years old until the time of her outcry
when she was fourteen years old. She testified that Wilbanks had told her not to
tell anyone about what he did and that he had threatened to kill himself if she did
tell anyone. Gloria said that Wilbanks would make her perform sexual acts in
exchange for food or other items and that she did not receive spending money
10 from her mother. Gloria told her best friend about the abuse because she “was
just tired of it” and did not want to “deal with it” anymore. Gloria also testified that
Wilbanks was like a father to her, that she loved him and did not want to get him
in trouble, and that she was hesitant to tell her mother because Gloria knew her
mother would be mad. Gloria did not say she was scared to tell an adult about
sexual abuse in general or that she did not know how to do so.
Wilbanks’s credibility argument is that Nelson’s testimony—that Gloria told
her at the end of the interview of three sexual incidents involving other
perpetrators—was relevant to Gloria’s credibility “because [he, Wilbanks]
produced evidence that one of these other accusations was false.” Wilbanks
claims he established this falsity via a defense exhibit admitted for record
purposes only—a letter from a person against whom Gloria had made an
accusation during her forensic interview. The letter was written by the father of a
different friend of Gloria’s, and in it, he admits making an inappropriate comment
to Gloria but does not admit any sexual acts. Nelson testified on voir dire outside
the present of the jury essentially that her question to Gloria during the interview
was a query about other instances of inappropriate looking at Gloria’s body, as
well as inappropriate sexual acts; specifically, Nelson testified that she always
asks whether “anyone else has ever looked at or touched their body.” [Emphasis
added.] Thus, the fact that the letter does not admit to sexual acts with Gloria
does not establish that Gloria’s identification of this man in answer to Nelson’s
question—which included the query of whether anyone else had looked at
11 Gloria’s body—was false. In the absence of proof of falsity, evidence that Gloria
made other allegations of abuse is inadmissible. See Puderbaugh v. State, 31
S.W.3d 683, 687 (Tex. App.—Beaumont 2000, pet. ref’d) (holding that trial court
did not abuse its discretion by preventing appellant from questioning the
complainant about prior accusation of sexual abuse because there was no
evidence to support that such accusation, if made, was false); Hughes v. State,
850 S.W.2d 260, 262–63 (Tex. App.—Fort Worth 1993, pet. ref’d) (“When there
is no evidence that the complainant made false accusations, any evidence
concerning the accusations is inadmissible.”); cf. Lopez v. State, 18 S.W.3d 220,
225 (Tex. Crim. App. 2000) (holding that even prior false accusations of abuse
do not “tend to prove or disprove any of the elements of rape”).
Concerning his false-impression contention, Wilbanks argues that on direct
examination, Gloria created a false impression with the jury that she did not know
how to report sexual abuse when she testified that she was scared and did not
know what to do. Wilbanks asserts that Gloria’s statement that she did not know
what to do was false because she had reported other instances of abuse
immediately. The alleged fact that Gloria immediately told people about one-time
inappropriate incidents with other alleged perpetrators with whom she did not live
does not make her testimony that she did not know what to do in this situation—
involving eight years of ongoing sexual abuse by Wilbanks, a man with whom
she lived, who was like a father to her, and whom she loved—false or
12 misleading. Thus, there was no false impression to rebut.7 See Ex parte
Robbins, 360 S.W.3d 446, 462 (Tex. Crim. App. 2011) (holding that medical
examiner’s testimony was not false and did not create a false impression), cert.
denied, 566 U.S. 986 (2012); Caldwell v. State, 356 S.W.3d 42, 51–52 (Tex.
App.—Texarkana 2011, no pet.) (looking at questions within the context of the
record and determining that answers given by State’s witness during cross-
examination did not create a false impression about his arrest history and did not
open door to impeachment).
Because Gloria’s credibility was not in dispute and because her testimony
on direct examination that she did not know what to do did not create a false
impression, the trial court correctly determined that it should not permit Wilbanks
to question Gloria about the incidents of sexual touching or behavior by other
perpetrators that she had mentioned during her forensic interview.8 We overrule
Wilbanks’s first issue.
7 Wilbanks makes a one-sentence argument that “even without a showing that these accusations were false, they were admissible in evidence under the doctrine of chances. See Hammer v. State, 296 S.W.3d 555, 569–70 (Tex. Crim. App. 2009).” Wilbanks’s argument based on the doctrine of chances was not preserved for our review because he did not object on that ground in the trial court. See Tex. R. App. P. 33.1(a); Douds, 472 S.W.3d at 677. 8 Because we uphold the trial court’s ruling, which implies that questions of Gloria about the incidents of sexual touching or behavior by other perpetrators were not relevant, we need not address the rule 403 argument that Wilbanks includes within his first issue. See McDonald v. State, No. 02-13-00483-CR, 2015 WL 2353307, at *4 (Tex. App.—Fort Worth May 14, 2015, no pet.) (mem. op., not designated for publication) (“Evidence that a child has made accusations of sexual abuse against another is not relevant or admissible in the absence of
13 V. REFUSAL TO PERMIT QUESTIONING OF FORENSIC INTERVIEWER ABOUT THE SEXUAL INCIDENTS INVOLVING OTHER PERPETRATORS
In his second issue, Wilbanks argues that the trial court abused its
discretion by not permitting him to question Nelson in front of the jury about
instances in which three other individuals had acted sexually toward Gloria
because this wrongful limitation of his right to cross-examine witnesses violated
his Confrontation Clause and Due Process rights under the United States
Constitution, this testimony was permissible under the rule of optional
completeness, and the State opened the door to this testimony by eliciting
testimony about the reliability of Gloria’s forensic interview. The State responds
that none of these grounds were raised at trial.
At trial, Wilbanks’s counsel asked to take Nelson on voir dire during cross-
examination:
[Wilbanks’s Counsel]: Your Honor, during the course of the forensic interview with this witness, this complaining witness indicated that she had three other instances of inappropriate touching throughout the course of her life. And as we noted earlier on the record that we believe that her reaction to those previous incidences show[s] a falsehood for her testifying in front of this jury that she did not know how to respond when she’s making the accusations against this Defendant.
And so I want to make a bill with this witness that these allegations came forth during the course of this interview and how the complaining witness told her she responded to those allegations.
evidence that those other accusations were false.”). See generally Tex. R. Evid. 403 (excluding otherwise relevant evidence if probative value is outweighed by danger of unfair prejudice).
14 THE COURT: Okay. You may do this at this time.
At the conclusion of the voir dire examination, the trial court stated, “Okay. My
ruling is still the same regarding those other instances. And I don’t believe that is
admissible in front of the jury.”
As with the colloquy regarding whether defense counsel could question
Gloria about the instances in which other perpetrators had acted sexually
towards her, Wilbanks did not raise a constitutional complaint to the limitation of
the forensic examiner’s testimony in the trial court. Thus, Wilbanks’s
Confrontation Clause and Due Process complaints as to excluded testimony of
the forensic interviewer were not preserved for appeal. See Leza, 351 S.W.3d at
360–61; Reyna, 168 S.W.3d at 179. Likewise, Wilbanks’s counsel did not argue
in the trial court that the evidence was admissible under the rule of optional
completeness or that the evidence was admissible because the State had
opened the door by eliciting testimony about indicia of reliability regarding
Gloria’s forensic interview; thus, Wilbanks did not preserve these complaints for
our review.9 See Tex. R. App. P. 33.1(a); Douds, 472 S.W.3d at 677.
Accordingly, we overrule Wilbanks’s second issue.
9 Similarly, Wilbanks’s one-sentence argument—that the forensic interviewer left the jury with a false impression when she testified that she had ended Gloria’s interview with “a neutral topic” when in fact she had asked Gloria about whether anyone else had ever looked at or had touched her body, eliciting information about three other perpetrators—was not preserved at trial. See Tex. R. App. P. 33.1(a); Douds, 472 S.W.3d at 677.
15 VI. OUTCRY TESTIMONY IS ADMISSIBLE
In his third issue, Wilbanks argues that the trial court reversibly erred by
admitting Gloria’s statements to her best friend’s mother under the outcry
statute’s exception to the general inadmissibility of hearsay. See Tex. Code
Crim. Proc. Ann. art. 38.072 (West Supp. 2017). Wilbanks contends that Gloria’s
outcry was not admissible under article 38.072 because the circumstances of the
outcry, including Gloria’s age when she made it, do not show that it was reliable.
Wilbanks also contends within his third issue that the admission of Gloria’s outcry
constitutes inadmissible bolstering. The State responds that Wilbanks did not
preserve these complaints for appeal.
A. Wilbanks’s Timing and Circumstances Complaints Are Not Preserved; Wilbanks’s Age Complaints Misconstrue the Statute
Wilbanks argues that, “based on [Gloria’s] age and the timing and
circumstances of her statements to [her friend’s mother], the trial court could not
reasonably have found that the statements were reliable.”
At trial, Wilbanks objected that article 38.072 requires that a complainant
be under the age of fourteen before a statement is admissible as an outcry:
[Wilbanks’s Counsel]: . . . [M]y reading of that statute indicates that the outcry has to be with a child who is under fourteen years of age. And the complaining witness’s age at the time of the outcry was fourteen. So I don’t know that outcry applies in this situation.
[State’s Counsel]: So the statute that we’re talking about is Article 38.072. And it does say, if you read the statute, the only language that it has is in regards to the actual conduct. And it says that this
16 article applies to a proceeding in the prosecution of an offense under any of the following provisions of the Penal Code. If committed against a child younger than fourteen years of age or a person with a disability. So it’s actually referring to when the conduct itself was committed.
[Wilbanks’s Counsel]: . . . But that should also include that there has to be a declaration by the Court that the child is unavailable. And that obviously is not part of -- I’m assuming it’s part of the State -- the State isn’t saying that the child is unavailable to testify.
[State’s Counsel]: . . . [W]e actually have the child here to testify.
[Wilbanks’s Counsel]: . . . My argument to the Court would be number one, that it’s clear from the legislative intent that they want to have this ability by the State for a child who is under the age of thirteen. And because they obviously believe that once you get to the ages of fourteen and older that the possibility of deceit is higher because children of a higher age have more of an understanding of the impact of their statements.
So I would submit to the Court that because the complaining witness in this case was over fourteen, fourteen-and-a-half, that this is far beyond the scope of what the legislative intent was for 38.072 as it made it clear in the opening paragraph of the statute. And I don’t think that bootstrapping to try to get more evidence in just because it’s hearsay doesn’t necessarily indicate that it’s any more reliable than if the witness testifies herself.
So I would just submit to the Court that this is not [sic] hearsay, and it does not fall under 38.072. And that any evidence that is submitted under that section is both hearsay and bolstering.
THE COURT: Okay. And response?
[State’s Counsel]: And my response would be it’s not specifically spelled out in the statute any intent as to the age of the child at the time that they’re giving -- or making their outcry. What’s specifically
17 spelled out is the age of the child at the time the offense is committed.
The Court’s still got to make a determination from our hearing whether the outcry testimony is reliable based on time, content[,] and circumstances. And with it not specifically spelled out, and with the prior Court’s rulings, I think the Court is allowed to make that determination.
THE COURT: The 38.072 subsection 3-C -- I get lost in all those different subsections. 3, talks about the child being available to testify so the statute contemplates that the child would actually testify as well as there being the possibility that an outcry statement would be admitted. Isn’t that true . . .?
[Wilbanks’s Counsel]: Yes, Your Honor.
THE COURT: Okay. All right. The Court will overrule that objection. . . .
[Wilbanks’s Counsel]: May I just make one more argument for the record, Your Honor?
THE COURT: Sure.
[Wilbanks’s Counsel]: . . . I believe that the legislative intent is clear due to the fact that there is another section in the same part of the code which indicates that -- the actual legislative wording is that the outcry has to be made within twelve months of the actual offense, and that’s for someone who is over seventeen years of age.
So I believe that this is clear from the external laws and the laws that are -- I mean, the procedures that are outlined prior to 38.072 and subsequent to 38.072, that the legislative intent was not to have [the] outcry deemed reliable for anyone over fourteen years of age.
THE COURT: That’s not in 38.072.
[Wilbanks’s Counsel]: No, Your Honor. It’s, I think, 071. . . .
THE COURT: Well, I think that only applies when a child is actually unavailable. Isn’t that what 38.071 is applicable to?
18 [State’s Counsel]: Recorded testimony, I believe.
THE COURT: That would be as if they were going to offer any statements, videotape or otherwise[,] and the child was not actually here or available for some legal reason.
[Wilbanks’s Counsel]: Correct. And I’m not referring to that section. I’m referring to the other section that says that an outcry of sexual assault has to be made within one year of the offense, for a child -- for a person who is not seventeen years of age or older. In other words, I’m saying that the legislature made it clear that there’s certain ages that they delineated to have import in the law.
So that’s what I’m just making clear for the record. . . . [Emphasis added.]
The colloquy above reflects that Wilbanks’s counsel did not object on the
ground that the timing and circumstances of Gloria’s statement reflect a lack of
reliability that prevent its admission under article 38.072; instead, she argued that
article 38.072 itself compels a conclusion that an outcry by a complainant older
than fourteen is inherently unreliable. Because Wilbanks’s “timing and
circumstances” arguments on appeal do not comport with his objection at trial, he
did not preserve these complaints for appeal. See Lovill, 319 S.W.3d at 691–92.
Moreover, to the extent Wilbanks argues in his brief that the trial court
abused its discretion by admitting the outcry because Gloria was fourteen years
old when she made the statement, his “age” argument misconstrues article
38.072. Article 38.072 applies when the offense is committed while the victim is
younger than the specified statutory age—younger than fourteen years of age—
19 or a person with a disability and the victim makes the outcry before her
eighteenth birthday. See Eldred v. State, 431 S.W.3d 177, 183 (Tex. App.—
Texarkana 2014, pet. ref’d). Although Gloria was fourteen years old when she
made the outcry to her best friend’s mother, Gloria was under the age of fourteen
when the offense was committed, and she made the outcry before her eighteenth
birthday. Accordingly, the trial court did not abuse its discretion by admitting
Gloria’s outcry statements. See id. (holding that outcry made when victim was
fourteen years old was admissible).
B. Outcry Did Not Constitute Improper Bolstering
Wilbanks also complains on appeal that the outcry evidence constitutes
inadmissible “bolstering.” According to Wilbanks, the only probative value of the
evidence was “to convince the jury that [Gloria’s] allegations were truthful and
worthy of credit.” Because Wilbanks’s argument on appeal comports with his
complaint at trial that the outcry evidence was not any more reliable than Gloria’s
own testimony, he has preserved this complaint for our review.
In addressing a bolstering objection in the article 38.072 context, the
Dallas Court of Appeals has held,
Although article 38.072 does not mention bolstering, nothing in the statute requires that the child complainant first be impeached before the outcry statement can be admitted into evidence. To the contrary, the statute contemplates testimony from both the child victim and the adult witness, regardless of whether the complainant is impeached. If bolstering provided a basis for excluding outcry statements that otherwise satisfy the requirements of article 38.072, the exception would swallow the rule.
20 Cantu v. State, 830 S.W.2d 166, 170–71 (Tex. App.––Dallas 1992, no writ). The
Cantu court concluded that article 38.072 provides for the admission of outcry
statements “regardless of their hearsay or bolstering nature.” Id. at 171.
Because article 38.072 does not prohibit the admission of outcry
statements based on bolstering, we hold that the trial court did not abuse its
discretion by overruling Wilbanks’s bolstering objection. See id. Accordingly, we
overrule his third issue.
VII. ADMISSION OF HANDWRITTEN SUMMARY NOT HARMFUL
In his fourth issue, Wilbanks argues that the trial court abused its discretion
by admitting over his timely bolstering objection State’s Exhibit 1—a chart listing
the acts Gloria had testified to, organized by her age at the time of occurrence,
which the prosecutor handwrote during Gloria’s testimony. Wilbanks contends
that “writing bits and pieces of [Gloria’s] testimony out for the jury did nothing to
make [her] testimony more or less probable than it would have been without the
evidence”; in other words, he complains that it had no independent relevance.
The State responds that Wilbanks did not preserve this complaint because his
bolstering objection at trial was too ambiguous; alternatively, the State argues
that the admission of the summary in State’s Exhibit 1 does not constitute
bolstering because it cannot be said that its sole purpose was to convince the
jury that Gloria was worthy of credit.
After Wilbanks’s counsel objected to the admission of State’s Exhibit 1 on
the grounds of “bolstering,” the trial court asked the prosecutor why Gloria’s
21 testimony alone would not be sufficient. The prosecutor then tried to ask Gloria if
she thought the exhibit would assist the jury, but Wilbanks objected to that
question as leading and invading the province of the jury. The trial court
sustained Wilbanks’s objection to the second question but then immediately
overruled Wilbanks’s objection to State’s Exhibit 1 and admitted it.
Here, the trial judge’s question indicates that she understood Wilbanks’s
objection to be that State’s Exhibit 1 was not relevant for any purpose other than
to enhance Gloria’s credibility. See Cohn v. State, 849 S.W.2d 817, 819–20
(Tex. Crim. App. 1993) (“‘Bolstering’ may perhaps be understood . . . to be any
evidence the sole purpose of which is to convince the factfinder that a particular
witness or source of evidence is worthy of credit, without substantively
contributing ‘to make the existence of [a] fact that is of consequence to the
determination of the action more or less probable than it would be without the
evidence.’”). Because Wilbanks’s issue on appeal is consistent with his objection
at trial, we hold that he preserved his bolstering complaint.
But regardless of whether Wilbanks preserved this complaint for appeal,
we nevertheless hold that any error is not reversible. Even if the trial court
abused its discretion by admitting the exhibit, the error is harmless because
Wilbanks does not complain, nor has he shown, that the prosecutor misled the
jury or that the summary was an inaccurate recitation of Gloria’s testimony. See
Wheatfall v. State, 882 S.W.2d 829, 838–40 (Tex. Crim. App. 1994) (holding that
although trial court erred by admitting five-page handwritten summary of
22 appellant’s violent criminal history, error was harmless because summary was
duplicative of other evidence of his criminal history and because jury had access
to summarized exhibits), cert. denied, 513 U.S. 1086 (1995); Markey v. State,
996 S.W.2d 226, 232 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (holding
that error in admitting prosecutor’s handwritten list of symptoms of intoxication
made during witness’s testimony was harmless when appellant did not argue that
list was erroneous or misleading and “jury was able to accept or reject the
prosecutor’s characterization of the testimony as it occurred”). See generally
Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim. App. 2010) (noting general
principle that trial court’s erroneous admission of evidence will not result in
reversal when same evidence was admitted elsewhere without objection either
before or after complained-of ruling), cert. denied, 564 U.S. 1020 (2011).
Accordingly, we overrule Wilbanks’s fourth issue.
VIII. OBJECTION TO “IMPRESSION” NOT SUFFICIENT TO PRESERVE COMPLAINT
In his fifth issue, Wilbanks contends that the trial court abused its
discretion by allowing a police detective to testify that her impression of text
messages between Wilbanks and Gloria “came across more as being boyfriend-
girlfriend[] texts.” The State responds that this complaint was not adequately
preserved because Wilbanks’s trial objection was too general.
On cross-examination, Wilbanks’s counsel asked the detective whether
she had found “anything sexual” in the text messages on Gloria’s phone, to
which the detective responded, “No.” When the State asked the detective on
23 redirect, “The texts that were exchanged I believe you said they weren’t sexual;
is that true,” she answered, “That’s correct.” The prosecutor then asked, “Did
they appear, just in your experience -- I think the defense counsel asked you
about telling a niece or nephew that you love them. Did the communications in
those texts appear like normal?” Wilbanks’s counsel objected that “normal and
not normal . . . invades the province of the jury,” and the trial court sustained the
objection. The prosecutor then asked the detective, “The texts that you read in
that communication between the individuals, what was your impression?”
Wilbanks’s counsel objected: “Objection to impression.” The trial court overruled
the objection, and the witness answered, “Kind of from my years of experience, it
came across more as being boyfriend-girlfriend, texts.”
On appeal, Wilbanks argues, “Impressions that are primary and for which
no substituted proof is conceivable can be put in evidence, but an impression
that is merely a secondary idea of that of which a more accurate idea is
obtainable cannot be received.” We cannot determine from the context of the
exchange that this is the objection asserted by Wilbanks in the trial court or that
this is what the trial court understood Wilbanks’s trial objection to be. Thus, this
complaint is not preserved for our review. See Lovill, 319 S.W.3d at 691–92.
We therefore overrule Wilbanks’s fifth issue.
IX. EX-WIFE’S TESTIMONY WAS NOT HARMFUL
In his sixth issue, Wilbanks argues that the trial court abused its discretion
by allowing his ex-wife to testify “that she ‘thought it was a little paranoid’ that [he]
24 ‘didn’t want any young girls in the house’ because he did not want to get accused
of anything and did not want anybody in the house when he was alone.”
Wilbanks argues that his ex-wife’s statement was not relevant and was not
admissible as a lay opinion.10 The State responds that the evidence is relevant
to Wilbanks’s state of mind—whether he was interested in young girls or had a
guilty conscience—and that it helped the jury understand his ex-wife’s testimony
because it showed that she thought there was no reason for Wilbanks to fear
having young girls in the house; alternatively, the State argues that any error in
the admission of Wilbanks’s ex-wife’s opinion was harmless “in light of the whole”
of her testimony and when compared to the direct evidence of his offenses.
Assuming that the admission of Wilbanks’s ex-wife’s opinion was an abuse
of discretion, we address whether such error is harmless. See Tex. R. App. P.
44.2(b); Motilla v. State, 78 S.W.3d 352, 355–56 (Tex. Crim. App. 2002)
(requiring court that performs harmless-error analysis to review the record as a
whole, including any testimony or physical evidence admitted for the jury’s
consideration, the nature of the evidence supporting the verdict, and the
character of the alleged error and how it might be considered in connection with
other evidence in the case). In reviewing the record as a whole, Wilbanks’s ex-
wife’s opinion—that she “thought it was a little paranoid” that Wilbanks did not
10 See generally Tex. R. Evid. 701 (“If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; and (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue.”).
25 want young girls in the house when he was home alone—is not any more
prejudicial than the rest of her testimony, and it is not significant in light of the
other evidence of Wilbanks’s guilt. Moreover, although the State emphasized in
its closing argument that Wilbanks’s ex-wife’s testimony corroborated Gloria’s
testimony with respect to the family’s living arrangements and Wilbanks’s
supervision of Gloria, the State did not mention Wilbanks’s ex-wife’s opinion
about his reluctance to have young girls at the house when he was home alone.
We conclude that in the context of the entire case against Wilbanks, the trial
court’s error, if any, in admitting his ex-wife’s opinion testimony did not have a
substantial or injurious effect on the jury’s verdict and did not affect Wilbanks’s
substantial rights. See Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App.
2001) (“Under the circumstances, we have a fair assurance that the evidence in
question did not influence the jury or had but slight effect.”); Ellison v. State, 494
S.W.3d 316, 330 (Tex. App.—Eastland 2015, pet. ref’d) (“To the extent that the
trial court may have erroneously admitted reputation evidence, it paled in
comparison to the direct evidence of Appellant’s egregious conduct.”). Thus, we
disregard the error and overrule Wilbanks’s sixth issue. See Tex. R. App. P.
44.2(b); Solomon, 49 S.W.3d at 365; Ellison, 494 S.W.3d at 330.
X. NO CUMULATIVE ERROR REQUIRING REVERSAL
In his seventh issue, Wilbanks argues that even if this court does not
determine that any of the complaints in his first six issues constitute reversible
error, we should still reverse the trial court’s judgment and remand the case
26 based on the cumulative effect of multiple harmless errors. Even assuming that
the trial court erred by admitting the prosecutor’s handwritten summary of
Gloria’s testimony and Wilbanks’s ex-wife’s testimony about his reluctance to
have girls at the house, we do not believe that the cumulative effect of the
admission of this evidence requires reversal. See Chamberlain v. State, 998
S.W.2d 230, 238 (Tex. Crim. App. 1999) (“It is conceivable that a number of
errors may be found harmful in their cumulative effect.”), cert. denied, 528 U.S.
1082 (2000); Flores v. State, 513 S.W.3d 146, 174–75 (Tex. App.—Houston
[14th Dist.] 2016, pet. ref’d). Nothing in the record indicates that the State used
the evidence to an unfair advantage or that the admission of the evidence
deprived Wilbanks of any constitutional rights or rendered the trial fundamentally
unfair. See Flores, 513 S.W.3d at 175; see also U.S. v. Stephens, 571 F.3d 401,
412 (5th Cir. 2009) (noting that cumulative-error doctrine compels relief only
when constitutional errors “fatally infect the trial,” depriving a defendant of
fundamental fairness). We overrule Wilbanks’s seventh issue.
XI. CONCLUSION
Having overruled Wilbanks’s seven issues, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
27 DELIVERED: January 18, 2018