Joshua Mendez v. the State of Texas

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-25-00314-CR

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JOSHUA MENDEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Criminal District Court Jefferson County, Texas

Trial Cause No. 23DCCR0173

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MEMORANDUM OPINION

Appellant Joshua Mendez (“Appellant” or “Mendez”) appeals his convictions for two counts of indecency with a child by exposure. See Tex. Penal Code Ann. § 21.11(a)(2). In count one, the State alleged in the indictment that on March 28, 2023, in Jefferson County, Mendez “with the intent to arouse or gratify the sexual

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desire of any person, expose[d] [Mendez]’s genitals, knowing that [D.B.],[1] a child younger than 17 years of age, was present[.]” In count two, the State alleged in the indictment that on March 28, 2023, in Jefferson County, Mendez “with the intent to arouse or gratify the sexual desire of any person, cause[d] [D.B.], a child younger than 17 years of age, to expose her genitals[.]” Mendez pleaded “not guilty” to both counts, but a jury found him guilty of both counts as charged in the indictments. The jury assessed punishment at ten years for each count, and the trial court sentenced Mendez in accordance with the jury’s verdict and ordered that the sentences be served consecutively. Mendez timely appealed. In six issues, Mendez argues the trial court erred in admitting certain evidence.

Background

Mary testified that, in March of 2023, her daughter, Melanie, had a son from a previous relationship, and she and her husband, Brad, had three children, one of which was four-year-old D.B., and Melanie was pregnant with their fourth child together. Mary’s other daughter, Linda, had a son from a previous relationship and a daughter with Linda’s boyfriend, Mendez. Melanie, Brad, their children, as well as Linda, and her children all lived together in a “red” house which was located on

1 We use initials and pseudonyms to refer to the alleged victim and family members. See Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”).

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Woodrow Street in Port Arthur, and it was just around the corner from where Mary lived. Mary recalled that Mendez had also been staying at the red house with Linda, Melanie, Brad, and the children. Mary described the living room layout from a photograph admitted at trial, and she explained that Melanie and Brad would push the sectional couch up against the wall to avoid toys and clothes going behind the couch. According to Mary, around 1 p.m. on March 28, 2023, she got a call from Melanie’s oldest son’s school nurse stating that he was sick at school, and Mary let Melanie know that she would pick him up from school. Mary picked up Melanie’s oldest son from school as well as Melanie and Brad’s daughter, D.B., and Mary took the children to the red house. Mary explained that she worked at the same restaurant as her son-in-law Brad, and that he was at work that day. Mary recalled that she spoke to Melanie and Linda about who was going to take Mary’s grandson to the doctor and what to do with D.B. because Mary had to go home and get ready for work. Mendez was at the red house watching three of the children, ages three years old and younger, and he volunteered to also watch D.B., while Mary left to go to work, and Melanie and Linda took the other children and Melanie’s oldest son to the doctor’s office. Mary testified that when she left around 2 p.m., Mendez was the only adult at home with the four children.

Officer Donald Jackson with the Port Arthur Police Department testified that, while on duty on March 28, 2023, he responded to a house on Woodrow in response

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to a disturbance call and it was reported that a male “caller came home and found a male subject inside his house on top of his daughter.” When Jackson arrived, Brad and Mendez were in the front yard and appeared to have been in an altercation. Officer Jackson testified that State’s Exhibits 9, 10, 11, and 12 are photographs depicting Mendez’s condition and appearance that day, and the exhibits were admitted into evidence over the defense’s objection and published to the jury. Officer Jackson recalled that when he spoke with Brad, Brad was “pissed[]” and in a “rage[,]” and Brad reported what he saw when he came home from work and why he was upset. According to Officer Jackson, Mendez was placed inside the patrol unit for Mendez’s safety because “more family members were en route” to the house and Officer Jackson “wanted to prevent further physical altercations[.]” Redacted footage from Officer Jackson’s body camera was admitted into evidence and published to the jury over the defense’s objection. Officer Jackson recalled that Mendez was cooperative at the scene, and Mendez mentioned that he had been cleaning the house. Detectives arrived and spoke to Mendez, and they instructed Officer Jackson to place Mendez under arrest. After the scene was secured and the investigation finished, Officer Jackson filed a report in this case. In his report, he noted that Mendez reported that he was trying to look for his phone and that he was trying to reach over D.B. to reach behind the couch, D.B. was in the way, he tried to move her, and Brad opened the door and found them in that state. Officer Jackson

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agreed that when he initially talked to Mendez, Mendez did not say that he was just trying to move D.B. According to Officer Jackson, he went in to see the couch and it was pushed up against the wall as pictured in the photograph, and it did not seem physically possible to reach behind the couch because of how it was positioned against the wall. Officer Jackson recalled looking around in the house and not seeing any cleaning supplies and observing the house “in total disarray.” Officer Jackson agreed on cross-examination that no one moved the couch to see if Mendez was telling the truth about his phone, and Mendez can be heard on the footage from Jackson’s body camera asking Jackson if he could borrow Jackson’s phone so Mendez could call his mother.

Brad, D.B.’s father, testified that he had known Mendez for about two or three years, but that Brad’s wife and her sister had known Mendez for longer. Mendez was dating Brad’s sister-in-law, Linda, and Mendez lived “off and on[]” at the house on Woodrow where Linda, Brad, Melanie, and their children lived. Brad testified that, until this incident, he had always thought of Mendez as “a good person[]” that could be trusted. Brad recalled that on March 28, 2023, he got off work early, went home, and was expecting to come home to the children watching television or playing. Brad testified that instead, he opened the front door and saw Mendez on top of Brad’s daughter, D.B., who was lying face up on the couch with Mendez’s girlfriend’s wig on D.B. and with D.B.’s pants and panties pulled down, and Brad could see her

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buttocks. According to Brad, although from that angle he could not see D.B.’s female genitalia, because her pants and panties were pulled down, her female genitalia would have been exposed. Brad recalled that Mendez’s left leg was in between the coffee table and the couch, his elbow was pinning D.B.’s shoulder down, Mendez’s pants were pulled down, and Brad could see Mendez’s buttocks. Brad testified that D.B. was screaming, “Josh, why are you doing this?[,]” “You don’t supposed to be doing this[,]” and “Stop.” According to Brad, as soon as he walked in, Mendez said, “It’s not what it looks like. I was looking for something behind the couch[,]” and Mendez moved aggressively towards Brad, and Brad immediately began “whipping [Mendez’s] a[#$] while [Mendez] was trying to pull up his own pants.” According to Brad, there was nothing that he had observed about Mendez’s body language that indicated he was really looking for something behind the couch, and the couch was pushed flush against the wall. Brad testified that he hit Mendez “a lot in his face[]” and “kneed him a lot more up in his nose[,]” and Brad vaguely remembers calling 911 “before something else worse happened” and there were children in the house. An audio recording of Brad’s 911 call was admitted into evidence and played for the jury. Brad testified that he did not have a shirt on in the body camera footage admitted into evidence because he “slipped right out” of his shirt during the physical altercation with Mendez. According to Brad, Mendez’s phone was found in his truck and was not inside the house. Brad testified that

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everything he told the officers and the information that he gave the nurse was true and accurate.

D.B. testified that she had just started second grade. She recalled what had happened when she was four years old and living in the red house. She did not recognize Mendez, who she referred to as “Josh[,]” in the courtroom, but she recognized him when the prosecutor showed her State’s Exhibit 9, a photograph of Mendez from the day of his arrest that had been admitted into evidence. D.B. testified that she remembered Josh locking the other children in another room and taking her into the living room. D.B. agreed that Josh got on top of her on the couch, pulled her pants and panties down, pulled his pants down, grabbed his “wienie” that was “pointing at” her, and he hurt her by touching it to her “front part[.]” She testified that she was screaming and telling Josh that he was hurting her, her father came in and punched him, and Josh left with the police.

Leesa Robicheaux, a forensic specialist with the Port Arthur Police Department, testified that she collected the sexual assault kit in this case from St. Elizabeth Hospital and logged it in at the police station as property.

Detective Adam Cousins with the Port Arthur Police Department testified that he responded to the scene and, at another detective’s request, he obtained a buccal swab of Mendez with his consent.

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The Sexual Assault Nurse Examiner (SANE) testified that she performed the sexual assault examination on four-year-old D.B. in this case, and the SANE’s redacted report was admitted into evidence as State’s Exhibit 16. The SANE testified that she takes a history from the child, and in this case, she also had information from the parents that guided the SANE to where DNA might be collected from D.B.’s body. The SANE recalled swabbing D.B.’s vulva, anus, lower abdomen, the mons area, and her inner thighs for DNA, and the SANE collected D.B.’s pajamas and underwear for laboratory testing. In her report, the SANE noted that D.B. told her:

Josh hurt me. He hurt me because he got on top of me. He yanked me out of my bed. He take me on the couch. He pulled his pants down, and he pulled my pants down. He got on top of me and then - - and then my daddy came and punched him, and the police take Josh.

The SANE testified that as she stated in her report, Brad provided additional information to her:

Dad states: “I got out of my truck about 3:12 or whatever. I got - - I got out, walked inside, and I saw him on top of her on the corner of the couch with his pants down to his thighs and hers was down the same way, her pants and her thighs. She was wearing his girlfriend’s wig with the same clothes she had on. When he was - - when he was getting up, he was pulling his pants up, and I saw his pubic hair. As he got up, he scooted his pants up. He said: It’s not what it looks like. I was getting something behind the couch. My couch is pushed up against the wall.

He kept saying, “I was looking for something behind the couch.” She was underneath him. And he said why - - and she said, “Why is he doing this? He won’t stop.” He got up and started pulling up his pants more.

She was pulling up her pants on side of the couch holding that wig in her hands. I said, “Why are you doing this?” And he said, “It’s not what

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you think.” He started looking at me aggressive. I told her to go outside.

And that’s when I attacked, and I had dispatch on the phone. Police came three minutes later. He stayed in the yard until the police came.

Jennifer Luna, a forensic interviewer with the Garth House Child Advocacy Center testified that she interviewed D.B. on March 29, 2023. Luna recalled that she was only able to get limited information from D.B., but that D.B. outcried that Mendez “point[ed]” his wienie at her.

Based on the testimony at trial, the DNA testing of some of the evidence analyzed were presumptive for the presence of semen, but that the testing revealed mixtures of DNA profiles that could not be interpreted. The DNA testing of a fraction of the vulva swabs from D.B. analyzed in this case excluded Mendez as a contributor. However, according to the DNA expert’s testimony, Mendez could not be excluded as a contributor of the male DNA profiles obtained from the anal swabs from D.B. and from D.B.’s underwear.

Q. Your next item that you looked at was the anal swabs, which we’ve marked as 14G. And you had some findings here, yes?

A. Yes.

Q. What were they?

A. The partial Y-STR profile is interpreted as originating from a single individual. Joshua Mendez cannot be excluded as a contributor of the male DNA profile.

...

Q. But Joshua’s is -- cannot be excluded is your wording?

A. That’s correct.

...

Q. Set that aside. You did have a finding about this cutting of the underwear, which I’ve marked as 14C.

A. Yes.

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Q. What did you find in regard to Fraction 1?

THE COURT: Hold on. Help the jury. The source of the item, so they know we’ve got underwear. Everybody wears underwear.

Q. (By Prosecutor) 14C. Correct?

A. Yes.

Q. And that is the cutting of the middle crotch of the underwear that came from the sexual assault kit?

A. Yes.

Q. That was the sexual assault kit from our victim here, that being --

A. [D.B.]

...

Q. Tell us what you found here.

A. On Fraction 1, the Y-STR profile is interpreted as an indistinguishable mixture of at least three individuals. No conclusions will be drawn as to whether [J.B.2] or Joshua Mendez could be a contributor to the male DNA profile.

Q. So, that Fraction 1 sounds like it’s similar to the mons and thighs?

A. Correct.

Q. Where you couldn’t move forward, right?

A. Yes.

Q. You had a different finding on Fraction 2. What was that?

A. The Y-STR profile is interpreted as a mixture of at least two individuals. Joshua Mendez cannot be excluded as a contributor of the major component in the male DNA profile. At the locations tested the selected major component of this profile is found in zero of 16,388 total individuals within the U.S. database. Applying a statistical confidence interval of 95 percent, this profile is not expected to occur more frequently than one in 5,471 U.S. males.

Q. Those are the same numbers you mentioned earlier, right?

A. Yes.

Q. Go ahead. I interrupted you. You have more.

A. In addition, any paternally related male relatives of Joshua Mendez may not be excluded as the contributor of this male -- of the major component of this male DNA profile. [J.B.] is excluded as a contributor to the major components of this male DNA profile. In addition, all paternally related male relatives of [J.B.] may be excluded as the contributor of the major component of this male DNA profile. Because

2 The appellate record reflects that J.B. is Mendez’s stepson who was three years old at the time of Mendez’s alleged offenses against D.B.

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statistical calculations cannot be performed on the minor component, no comparisons or no conclusions will be made.

Q. So, Fraction 1 portion we weren’t -- you couldn’t move further because too much of a mixture?

A. Correct.

Q. But with Fraction 2, you were able to exclude [J.B.] from this sample?

A. Yes.

Q. But you could not exclude Joshua Mendez from this sample?

A. Correct.

Mendez testified in his own defense. Mendez denied locking anyone in a room on the day he was arrested and denied that D.B.’s pants were down, denied that his pants were down, and denied that he was on top of D.B. According to Mendez, he was reaching and looking behind the couch for his phone or anything loose to pick up, the couch that day was not completely against the wall, and the furniture had been moved prior to the police taking pictures two days after Mendez’s arrest. Mendez testified that he did not assault D.B. and did not touch her. Mendez testified that Brad opened the front door, went back to his vehicle and came back with his phone, and then hit Mendez. During the fight inside the house, Mendez’s shirt came off and Mendez told Brad he did not do anything. Mendez testified that he did not put his own phone in the truck and that he had to borrow the officer’s phone because Mendez did not have his phone with him. Mendez testified that he believed someone put his phone inside his truck and that Brad and others were in a conspiracy to frame him for something he did not do. Mendez denied that he had ever exposed himself

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or that he or D.B. had their pants off, and he did not know why Brad would lie about him.

Standard of Review

We review a trial court’s ruling on the admission of evidence for an abuse of discretion. Gonzalez v. State, 616 S.W.3d 585, 594 (Tex. Crim. App. 2020). A trial court abuses its discretion when it acts without reference to any guiding rules and principles or acts arbitrarily or unreasonably. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). “‘As long as the trial court’s ruling is within the ‘zone of reasonable disagreement,’ there is no abuse of discretion, and the trial court’s ruling will be upheld.’” De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex. Crim. App. 2009) (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g)); State v. Mechler, 153 S.W.3d 435, 439-40 (Tex. Crim. App. 2005). We will uphold a trial court’s evidentiary ruling if it is correct on any theory of law applicable to that ruling. De La Paz, 279 S.W.3d at 344. A trial court’s error in improperly admitting evidence may be rendered harmless if other evidence that proves the same facts as the inadmissible evidence is admitted without objection. See Valle v. State, 109 S.W.3d 500, 509-10 (Tex. Crim. App. 2003).

Admission of Photographs

In issues one through four, Mendez argues the trial court committed reversible error in admitting State’s Exhibits 9, 10, 11, and 12, photographs of Mendez in

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custody in the Jefferson County Jail. Mendez contends State’s Exhibit 9 depicts him shirtless in a jail setting with his hands handcuffed behind his back, State’s Exhibit 10 depicts a side view of him shirtless in the same setting, State’s Exhibit 11 depicts him shirtless in the same setting but with jail cell doors clearly visible, and State’s Exhibit 12 depicts him shirtless next to a jail cell door, in custody, with the implication that his hands were handcuffed behind his back. According to Mendez, although D.B. identified Mendez in one of the photographs during her testimony, there was no necessity to present her with a photograph of him so restrained. Specifically, Mendez asserts that the erroneous admission of the photographs infringed on his presumption of innocence and denied him due process of law, that the photographs serve to prove no contested issue in the case, and that the trial court erred in believing the fact that Mendez appeared similarly at the time of the incident as he did while in custody in the jail which the trial court believed rendered the photographs admissible. On appeal, Mendez cites to Deck v. Missouri,3 a United States Supreme Court decision concluding that where a trial court without adequate justification orders the defendant to wear shackles in front of the jury, the defendant is not required to demonstrate actual prejudice to make out a due process violation, and the State must prove “beyond a reasonable doubt” that the shackling error complained of did not contribute to the jury’s verdict. Mendez contends that the

3 544 U.S. 622, 630 (2005).

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admission of State’s Exhibits 9, 10, 11, and 12 “was tantamount to shackling appellant before the jury for the members to see and consider in reaching their verdict.”

During Officer Jackson’s testimony, the prosecutor questioned Officer Jackson about the photographs:

Q. . . . I showed you what I’ve marked as State’s Exhibit 9, 10, 11, and 12. Do you recognize these photographs?

A. Yes, sir, I do.

Q. Who does it depict in these photographs?

A. Mr. Mendez.

Q. Is that how he appeared on the date of this incident?

A. Yes, sir, it is.

Q. Shirtless?

A. Yes, sir.

Q. Wearing a pair of blue jeans?

A. Yes, sir.

Q. Do these pictures truly and accurately depict each - - looks like a front, some side views, and a full body view; is that right?

A. Yes, sir, they do.

Q. Would these help the jury to see [Mendez’s] actual condition at that particular day?

A. Yes, sir.

Q. And they truly and accurately depict him on that particular day, March 28th of 2023?

A. Yes, sir, they do.

[Prosecutor]: We would tender State’s Exhibits 9, 10, 11, and 12.

Defense counsel asked to approach the bench and a discussion at the bench followed:

[Defense counsel]: Your Honor, at this time I have an objection. The question was: Was at the time of the incident at the location that it happened, did it fairly and accurately represent him? Those pictures are taken at a later time in the jail. In fact, one of the background is a jail while he is in custody; and I would object to those photographs being entered into.

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THE COURT: The question was: Is that how he appeared on the date of this incident? Yes, sir, it is.

[Defense counsel]: Yeah. Those pictures were taken later on at the Jefferson County Jail, with the jail background in the picture.

THE COURT: On the date of the incident, right?

[Prosecutor]: Yes, sir. They’re going to - - they’re going to learn that he was arrested that day; so, I don’t see the objection. It’s all - - what it shows - -

THE COURT: Anything else?

[Defense counsel]: No.

The trial court overruled the objection and State’s Exhibits 9, 10, 11, and 12 were admitted and published to the jury.

As for Mendez’s argument on appeal that the admission of the photographs denies his constitutional right to due process and a fair trial, he did not make those objections at the trial. In fact, he did not state anything other than a general objection because the photographs were taken later at the Jefferson County Jail, with the jail background in the picture, rather than being taken at the scene when he was arrested. Mendez made no specific objection pursuant to any of the Rules of Evidence, and there was no constitutional complaint.

To preserve a complaint for appellate review, the complaining party must make a timely objection to the trial court that states the grounds with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds are apparent from the context. Tex. R. App. P. 33.1(a)(1). A complaint is not preserved for appellate review if the trial objection does not comport with the complaint on appeal. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012);

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see also Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016) (noting that, “[i]f a trial objection does not comport with arguments on appeal, error has not been preserved[]”). Even when a party fails to properly object to alleged constitutional errors at trial, the errors can be forfeited. Clark, 365 S.W.3d at 339 (explaining that evidentiary objections at trial do not preserve a due process claim for appeal) (citing Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990)). Mendez did not argue in the trial court that the admission of the photographs denied him his constitutional right to due process and a fair trial, and nothing in the record indicates that the trial court or the prosecutor knew that Mendez was objecting on that basis.

That said, even assuming without deciding that it was clear from the context that Mendez’s objection to State’s Exhibits 9, 10, 11, and 12 was on the basis that they undermined the presumption of innocence because they depicted him shirtless and in handcuffs in front of a jail cell, we conclude the trial court did not abuse its discretion in admitting the photographs. See Gonzalez, 616 S.W.3d at 594 (abuse of discretion standard applies to our review of trial court’s admission of evidence). While in most circumstances, requiring a defendant to wear handcuffs before the jury infringes upon a defendant’s constitutional presumption of innocence, 4 Mendez

4 See, e.g., Randle v. State, 826 S.W.2d 943, 944-45 (Tex. Crim. App. 1992)

(compelling defendant to stand trial in prison clothing, over timely objection, violates rights to fair trial and presumption of innocence); Long v. State, 823 S.W.2d 259, 282 (Tex. Crim. App. 1991) (defendant suffers infringement of constitutional presumption of innocence when jury sees him in handcuffs or shackles).

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did not appear before the jury in handcuffs during the trial, and we reject Mendez’s argument on appeal that showing the objected-to photographs to the jury had the same effect as if he had been handcuffed during the trial. See, e.g., Hopkins-Mcgee v. State, No. 01-19-00475-CR, 2020 Tex. App. LEXIS 9651, at *21 (Tex. App.— Houston [1st Dist.] Dec. 10, 2020, no pet.) (mem. op., not designated for publication) (“[W]e disagree that any effect on the jury from the brief suggestion (via the admission of a photograph) that [the defendant] was arrested equates to the recurring impression created when a defendant appears throughout trial in handcuffs, shackles, or jail clothing.”) (citing Hollis v. State, 219 S.W.3d 446, 466 (Tex. App.—Austin 2007, no pet.)). The jury heard Officer Jackson’s testimony about the circumstances of Mendez’s arrest that day, and it would be of no surprise that Mendez was handcuffed and taken to the jail that day. See id. at *22 (“[I]t would be unremarkable to the jury that [the defendant] was arrested, particularly because [the arresting officer]’s testimony described the circumstances of that arrest.”) (citing Hutchinson v. State, No. 01-98-01259-CR, 1999 Tex. App. LEXIS 8099, at **2-3 (Tex. App.— Houston [1st Dist.] Oct. 28, 1999, pet. ref’d) (not designated for publication) (no error when the jury was allowed to see a videotape of the defendant in jail clothes during a lineup because “[j]urors should not have been surprised to learn that, at some time before trial, appellant had been jailed. Obviously, a defendant must be arrested and taken to jail to begin the felony criminal litigation process.”)).

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As clarified by the prosecutor during the bench conference, the photographs were introduced to show Mendez’s appearance on the day of the alleged offenses and his arrest. Photographs that reflect a defendant’s appearance on the date of arrest or offense are admissible and “do[] not rise to a level of [a violation of an] appellant’s constitutional right to be presumed innocent.” Neelys v. State, 374 S.W.3d 553, 564 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (photograph depicting defendant’s handcuffed hand and arm and wounds on knuckles, hand, and arm, was admissible because it reflected defendant’s appearance on the day of offense and testimony related to the defendant’s photographed injuries and not the fact that he was handcuffed). Also, D.B., who was four years old at the time of the alleged offenses and in second grade when she testified, had difficulty identifying Mendez at trial and the photographs aided her identification because they depicted how he appeared at the time of his arrest the same day of the alleged offenses. See Stanley v. State, No. 07-98-0328-CR, 1999 Tex. App. LEXIS 7115, at **16-17 (Tex. App.— Amarillo Sept. 21, 1999, pet. ref’d) (not designated for publication) (the witness had difficulty identifying the defendant, and the trial court did not abuse its discretion in admitting the defendant’s “mugshot” as he appeared on or about the time of the assault for the purpose of aiding in the identification); see also Laws v. State, 549 S.W.2d 738, 741 (Tex. Crim. App. 1977) (when the identification testimony centered on the defendant’s appearance on the day of the offense, the trial court did

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not abuse its discretion in admitting into evidence a photograph of the defendant depicting his appearance on the date of his arrest because “[j]ust as a verbal description of appellant’s appearance at the time of his arrest is admissible, so too is the photograph that accurately depicts such[]”). Accordingly, the trial court’s admission of State’s Exhibits 9, 10, 11, and 12 was within the zone of reasonable disagreement. See De La Paz, 279 S.W.3d at 343-44. We overrule issues one through four.

Admission of Brad’s Statements Summarized in the SANE’s Report In issue five, Mendez argues the trial court erred when it admitted State’s Exhibit 16, the SANE report. According to Mendez, the trial court erred in admitting the report because it contained out-of-court statements unrelated to medical diagnosis or treatment and not otherwise admissible as any exception to the rules excluding hearsay. Mendez argues that he objected to the hearsay statements of both Melanie and Brad included in the report, and that the trial court admitted the exhibit with Melanie’s hearsay statements redacted, but overruled Mendez’s objections to Brad’s hearsay statements in the report. Mendez contends that Brad’s statements, which are included in the report, amounted to hearsay that did not fall under any hearsay exception under Rule 802 of the Texas Rules of Evidence, and that the statements did not fall within Rule 803(4)’s medical information exception to the exclusion of the hearsay rule. Mendez asserts that State’s Exhibit 16 “went beyond

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medical treatment[]” by including statements such as Brad describing Mendez’s alleged statements about the location of items in the home, Mendez’s demeanor towards Brad, D.B.’s statements, and the “ensuing fight[.]” We construe this issue as a challenge to the trial court’s refusal to strike or redact the SANE’s notes in her report that state what Brad told her.

According to the record, defense counsel made the following objection to State’s Exhibit 16:

[Defense counsel]: And based on the SANE exam, your Honor, if you would go to page 2 of that document, there is a history of the incident, and I am going to at this time object to paragraphs 2 [Melanie’s statements] and 3 [Brad’s statements], that those were not meant for medical diagnosis. And it was also not from the patient herself, but from either a parent or someone else. And, so, I would object to that in the document.

...

Objection that paragraphs 2 and 3 were not meant for medical diagnosis, Judge. And, so - -

THE COURT: You’re objecting to [Melanie]’s statement?

[Defense counsel]: And [Brad]’s.

...

[Defense counsel]: And may I add, Judge, for the record that in [Melanie]’s statement I don’t know if the State will call her or not, but then that would - - also I object it would violate my client’s due process protection of not being able to confront [Melanie] in reference to the statements that were made in this report.

THE COURT: Okay. And where under Rule 803 of the Rules of Evidence does that say that that’s necessary under exceptions to the rule against hearsay?

[Defense counsel]: I don’t think it’s an exception to the rule of hearsay, Judge.

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Outside the presence of the jury, the SANE testified that generally when she obtains statements from parents, it is for the purposes of treating the child, and that when parents bring a child to the emergency room for a SANE exam, the SANE has the parents sign forms, give consent for her to speak to the child, and the SANE asks the parents what is going on with the child and the reason for the hospital visit. The SANE testified that in this case, the information provided by the parents was used in treating the child and in deciding what evidence should be collected during the SANE exam. Defense counsel further argued that D.B.’s statements to the SANE were sufficient for the SANE to determine what type of examination was necessary and that Brad’s “extra” statements, “specifically, . . . the pants down, getting something behind the couch, pushing up against the wall, all of that, keep saying looking for something behind the couch, being aggressive[,] . . . [i]t’s not for a medical diagnosis. . . . [Y]es, [the SANE] has an obligation to write down [in] her report what was actually said[,] . . . but it still doesn’t make it admissible[.]”

The trial court explained its rationale for sustaining the defense’s objection to Melanie’s statements in State’s Exhibit 16 and for overruling the defense’s objection to Brad’s statements noted in State’s Exhibit 16:

THE COURT: All right. The Court has reviewed proposed State’s Exhibit 16, which is a medical forensic assessment report. And the defense has objected to it as being improper hearsay.

The State responds with their proposal that it is admitted for the purposes of having the jury consider statements that were made for the purposes of medical diagnosis or treatment.

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This is covered under Rule 803, Subpart (4) of the Texas Rules of Evidence. A statement that would otherwise be hearsay and inadmissible may be admissible under Rule 803(4), if, one, it was made for the purpose of medical diagnosis or treatment; describes a medical history, past or present symptoms, pain or sensations; or the cause for external source of the symptoms, pain or sensation external, and is reasonably pertinent to the diagnosis or treatment of the patient.

The rationale behind allowing this provision to be an exception to the general rule that hearsay is not admissible is that patients seeking medical help generally do not lie or exaggerate about their physical condition. And because proper medical treatment depends on reliable diagnosis, patients have a strong motivation to be truthful.

When considering whether statements made by children to mental health professionals are admissible under 803(4), the Court of Criminal Appeals observes that it is incumbent upon the proponent of the hearsay objection to make the record reflect both, number one, the truth-telling was a vital component of the particular course of therapy or treatment involved; and, two, that it is readily apparent that the child declarant was aware that this was the case. Otherwise, the justification for admitting the out-of-court statement over a valid hearsay objection is too tenuous.

The record must show that the declarant was actually seeking a medical diagnosis or treatment. In this case we are talking about a 4- year-old. And the parents of the 4-year-old are who provided the information to the medical care personnel.

The Texas Court of Criminal Appeals has already ruled on this under Taylor versus State, 268[ ] S.W.3d at 587: A statement by a child to a parent or statement of a parent which, in turn, is relayed to a physician of what occurred to the child by someone providing the information with direct -- by directly seeing the information is covered by this exception and is admissible. The rule also does not require that the statement be made by the patient. Statements made by parents of small children to further children’s medical treatment are admitted under 803(4).

803(4) further permits the admission of statements about the causes of a patient’s condition, like a child who has allegedly been sexually assaulted or an attempt to sexual assault a child. Admission of statements about the causes of a patient’s condition are admissible as long as they are reasonably pertinent to diagnosis or treatment.

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The Court finds in this case that the 4-year-old is going to obviously have issues that are apparent in the ability to pass on information directly to medical people based upon a 4-year-old’s lack of experience in matters, such as this. And their -- what is observed by parents or adult witnesses of, for instance, in this case the alleged assault of a child or attempted assault, sexual assault of a child by witnesses to the event are necessary to be relayed to medical personnel since a 4-year-old has understandably difficult -- difficulty in being able to effectively communicate what is occurring to the child in a situation, such as an attempted sexual assault.

So, the Court finds that the objection made by the defense is overruled, and it is admissible under Rule 803, Subpart (4), as the statements through the parents as witnesses to the event are necessary in the treatment of a 4-year-old who is understandably --

understandably going to have a difficult time responsibly informing medical personnel of what had occurred. And this is all for the purposes of necessary medical treatment, which requires accurate information for effective diagnosis and treatment.

The only concern I do have about this is Mom states -- what Mom states, I had to bring -- and I ended up going to the -- I got a call -- I got a call from my husband that he went home. He was trying to see -- okay.

[Prosecutor]: Judge, we’re going to agree to remove that.

THE COURT: Okay. Her statement is just double hearsay, which I think has --

[Prosecutor]: We’re going to agree to redact it, Judge.

“Hearsay is a statement, including a written statement, other than one made by the declarant while testifying at the trial, which is offered to prove the truth of the matter asserted.” Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995); see Tex. R. Evid. 801(d). Although hearsay, absent a recognized exception or exemption, constitutes impermissible evidence, “[a]n extrajudicial statement or writing which is offered for the purpose of showing what was said rather than for the truth of the matter stated therein does not constitute hearsay.” Dinkins, 894

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S.W.2d at 347 (emphasis in original); Tex. R. Evid. 802 (“Hearsay is not admissible unless any of the following provides otherwise: a statute; [the rules of evidence]; or other rules prescribed under statutory authority.”). Once the opponent of hearsay evidence makes the proper objection, it becomes the burden of the proponent of the evidence to establish that an exception applies that would make the evidence admissible despite its hearsay character. See Taylor v. State, 268 S.W.3d 571, 578- 79 (Tex. Crim. App. 2008). As this Court recently explained in Potter v. State,

[t]here are several exceptions to hearsay, including an exception for “[a]

statement that: (A) is made for—and is reasonably pertinent to—

medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.” Tex. R. Evid. 803(4). This exception presumes that the patient understands the importance of being truthful with the medical personnel involved to receive an accurate diagnosis or treatment. See Puderbaugh v. State, 31 S.W.3d 683, 685 (Tex. App.—Beaumont 2000, pet. ref’d); Franklin v. State, 459 S.W.3d 670, 676 (Tex. App.—

Texarkana 2015, pet. ref’d); Beheler v. State, 3 S.W.3d 182, 188 (Tex.

App.—Fort Worth 1999, pet. ref’d). For statements to be admissible under Rule 803(4), the proponent of the evidence must show that: (1)

the declarant was aware that the statements were made for the purposes of medical diagnosis or treatment and that proper diagnosis or treatment depended on the veracity of the statement; and (2) the particular statement offered is also “pertinent to treatment[;]” that is, it was reasonable for the healthcare provider to rely on the particular information in treating the declarant. See Taylor, 268 S.W.3d at 589, 591; Hanke v. State, No. 09-14-00326-CR, 2015 Tex. App. LEXIS 9884, at *18 (Tex. App.—Beaumont Sept. 23, 2015, no pet.) (mem. op., not designated for publication) (citing Taylor, 268 S.W.3d at 588-91;

Mbugua v. State, 312 S.W.3d 657, 670-71 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d)); Prieto v. State, 337 S.W.3d 918, 921 (Tex.

App.—Amarillo 2011, pet. ref’d).

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No. 09-21-00386-CR, 2024 Tex. App. LEXIS 1652, at *24 (Tex. App.—Beaumont Mar. 6, 2024, pet. ref’d) (mem. op., not designated for publication).

The SANE testified that she included in her report the information provided by D.B.’s father. State’s Exhibit 16, the redacted report admitted into evidence over Mendez’s objection, included the following notation by the SANE in the section for “History of Incident(s)[:]”

Dad states, “I got out of my truck about 3[:]12 or whatever. I got out walked inside[,] and I saw him on top of her on the corner of the couch with his pants down to his thighs and hers was down the same way. Her pants at her thighs. She was wearing his girlfriend’s wig with the same clothes she has on. When he was getting up[,] he was pulling his pants up and I saw his pubic hair. As he got up he scooted his pants up. He said it’s not what it looks like[.] I was getting something behind the couch. My couch is pushed up against the wall. He kept saying I was looking for something behind the couch. She was underneath him and she said why is he doing this[,] he won’t stop. He got up and started pulling up his pants more. She was pulling up her pants on side of the couch holding that wig in her hands. I said why are you doing this and he said it’s not what you think. He started looking at me aggressive[.] I told her to go outside and that’s when I attacked and I had dispatch on the phone. Police came 3 minutes after. He stayed in the yard until the police came.

Here, even assuming without deciding the objected-to part of the SANE report was hearsay and further that the exception in evidentiary Rule 803(4) did not apply, and that the trial court abused its discretion in admitting Brad’s statements included in State’s Exhibit 16, we find that any error in the admission of the statements was harmless because the same evidence was properly admitted through Brad’s unobjected-to testimony. See Valle, 109 S.W.3d at 509-10; see also Brooks v. State,

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990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (concluding that any error in admitting hearsay evidence was harmless in light of the other properly admitted evidence proving the same fact); Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (“Our rule . . . is that overruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling.”); Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986) (“Inadmissible evidence can be rendered harmless if other evidence at trial is admitted without objection and it proves the same fact that the inadmissible evidence sought to prove.”); Woodard v. State, No. 09-21-00206-CR, 2023 Tex. App. LEXIS 7591, at *19 (Tex. App.—Beaumont Oct. 4, 2023, no pet.) (mem. op., not designated for publication) (“Since essentially the same evidence was admitted through [the defendant]’s testimony, [the defendant] suffered no harm.”) (citing Tex. R. App. P. 44.2(b); Patterson v. State, 980 S.W.2d 529, 533 (Tex. App.—Beaumont 1998, no pet.)); Russell v. State, 290 S.W.3d 387, 399 (Tex. App.—Beaumont 2009, no pet.) (“Generally, improperly admitted evidence is rendered harmless when other properly admitted or unobjected-to evidence is admitted to prove the same fact.”). If the record shows that the fact to which an erroneously admitted hearsay statement relates “is sufficiently proved by other competent and unobjected[-]to evidence, . . . the admission of the hearsay is properly deemed harmless and does not constitute reversible error.” Anderson, 717 S.W.2d at 627. Here, Brad testified, without

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objection, to what happened when he got home from work: he opened the front door and saw Mendez on top of D.B.; D.B. was lying face up on the couch with Mendez’s girlfriend’s wig on and with her pants and panties pulled down and Brad could see her buttocks; Mendez’s left leg was in between the coffee table and the couch and his elbow was pinning D.B.’s shoulder down; Mendez’s pants were pulled down and Brad could see Mendez’s buttocks; D.B. was screaming, “Josh, why are you doing this?[,]” “You don’t supposed to be doing this[,]” and “Stop[;]” Mendez said, “It’s not what it looks like. I was looking for something behind the couch[;]” Mendez moved aggressively towards Brad; Brad had a physical altercation with Mendez while Mendez was trying to pull up his own pants; and Brad called 911. Brad’s unobjected-to testimony as to what he saw and what happened when he got home from work that day established essentially the same facts that the objected-to part of the SANE’s report stated about what Brad told her. Therefore, any alleged error in admitting the evidence was harmless. See Valle, 109 S.W.3d at 509-10; Brooks, 990 S.W.2d at 287; Leday, 983 S.W.2d at 718; Russell, 290 S.W.3d at 399. We overrule issue five.

Prosecutor’s Closing Argument During the Punishment Phase In issue six, Mendez argues that fundamental and egregious error occurred when the prosecutor referred to the punishment phase of the trial during his closing argument to persuade the jury to convict Mendez during the guilt or innocence stage.

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Mendez contends that the following improper comment by the prosecutor during the State’s closing argument denied Mendez his right to the presumption of innocence and due process of law and was so harmful “that no objection and instruction to disregard could have cured the harm[:]”

I need y’all to do the right thing. I need you to go and do what I think is an easy job because the evidence is overwhelming about his guilt. I want you to do the right thing. I want you to go in there. I want you to do your job. If somebody disagrees about what I’ve had to say, maybe they bought into this argument. Everybody talk and let’s work that out and let’s put a guilty verdict on both these things. Let’s give [D.B.] affirmation, this sweet little 4-year-old that never chose to go through this. Let’s make it clear. You have a chance to send that decision. Let’s do it, and now let’s get to work on punishment. Thank you.

The State argues on appeal that Mendez failed to preserve error because he failed to object to the alleged improper jury argument, and that error, if any, was harmless.

Proper areas of jury argument include: (1) a summation of the evidence presented at trial; (2) a reasonable deduction drawn from the evidence; (3) an answer to opposing counsel’s argument; or (4) a plea for law enforcement. See Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000). The essential requirement to preserve error for improper jury arguments is a timely, specific request that is refused by the trial court. See Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007); Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004); see also Tex. R. App. P. 33.1(a)(1)(A) (To preserve a complaint for our review, a party must first present to the trial court a timely request, objection, or motion stating the specific

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grounds for the desired ruling if not apparent from the context.). “[A] defendant’s failure to object to a jury argument or a defendant’s failure to pursue to an adverse ruling [on] his objection to a jury argument forfeits his right to complain about the argument on appeal.” Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); see also Threadgill, 146 S.W.3d at 670 (failure to object to an allegedly “manifestly improper[]” jury argument forfeits the right to raise the issue on appeal). Even if a prosecutor’s statement is so inflammatory and prejudicial that it cannot be cured by an instruction to disregard, the defendant is required to object and request a mistrial. Mathis v. State, 67 S.W.3d 918, 926-27 (Tex. Crim. App. 2002); see also Hernandez v. State, 538 S.W.3d 619, 622-23 (Tex. Crim. App. 2018) (“Even an inflammatory jury argument is forfeited if the defendant does not pursue his objection to an adverse ruling.”); Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010) (even assuming prosecutor’s argument was so egregious that instruction to disregard would be ineffectual, defendant “should have moved for a mistrial to preserve this error.”); McGinn v. State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998) (If a trial court sustains an objection asserting improper jury argument, to preserve error on appeal, the complaining party must also request an instruction to disregard the argument if such an instruction could cure the prejudice; if the erroneous jury argument is incurable, the complaining party must move for a mistrial.). While some fundamental, absolute rights cannot be waived for failure to preserve an objection,

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improper jury argument does not fall into that category. See Ladd v. State, 3 S.W.3d 547, 569-70 (Tex. Crim. App. 1999) (complaint about State’s argument violating defendant’s right to due process was waived for failure to object); Haro v. State, 371 S.W.3d 262, 265 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (even for “incurable” or “constitutional” error, trial counsel must object to preserve error).

In this case, the defense made no objection, did not request an instruction to disregard, and did not move for a mistrial. Therefore, Mendez failed to preserve his issue for appellate review. See Hernandez, 538 S.W.3d at 622-23; Threadgill, 146 S.W.3d at 670; McGinn, 961 S.W.2d at 165; Cockrell, 933 S.W.2d at 89. We review unpreserved error only when the error is so egregious and created such harm that appellant did not receive a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). A harm evaluation entails a review of the whole record, including the jury charge, contested issues, weight of the probative evidence, arguments of counsel and other relevant information. Id.

We cannot conclude on this record as a whole that the alleged improper argument caused egregious harm or otherwise denied Mendez a fair and impartial trial. See id. On this record, even if Mendez had made an objection to the argument, the trial court would not have erred in denying an instruction to disregard or a motion for a mistrial. See Young v. State, 137 S.W.3d 65, 70-71 (Tex. Crim. App. 2004)

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(explaining requirements for an instruction to disregard and motion for mistrial). We overrule issue six.

Having overruled Appellant’s issues, we affirm the trial court’s judgments.

AFFIRMED.

LEANNE JOHNSON

Justice

Submitted on July 1, 2026 Opinion Delivered August 26, 2026 Do Not Publish

Before Golemon, C.J., Johnson and Wright, JJ.