In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-24-00275-CR __________________
MORGAN ALLEN SANDERS, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 23-07-10752-CR __________________________________________________________________
MEMORANDUM OPINION
A grand jury indicted Appellant Morgan Allen Sanders (“Appellant” or
“Sanders”) for the offense of aggravated sexual assault of a child younger than
fourteen, a first-degree felony. See Tex. Penal Code Ann. § 22.021(a)(2)(B). Sanders
entered a plea of “not guilty,” but a jury found him guilty as charged in the
indictment. After hearing additional evidence on punishment, the trial court
sentenced Sanders to twenty years of confinement. In a single issue on appeal,
Sanders argues that the trial court erred by excluding the testimony of his expert
1 witness. As explained below, we overrule his issue and affirm the judgment of
conviction.
Evidence at Trial
Testimony of Deputy Kyle Sullivan
Deputy Kyle Sullivan, with the Montgomery County Sheriff’s Office, testified
that he worked the night shift on Father’s Day, June 19, 2023, and he received a call
involving a sexual assault of a child. Sullivan recalled that the call referenced an
incident at a home, however “Melodie,” 1 the complainant’s mother, asked to meet
him at a gas station. According to Sullivan, Melodie filled out a voluntary written
statement about the incident, and Sullivan’s sergeant authorized a Sexual Assault
Nurse Examiner (“SANE”) examination. Sullivan identified photos of the residence
involved in the incident and the photos were admitted into evidence. On cross-
examination, Sullivan testified that he did not visit with the alleged victim.
Testimony of Melodie
Melodie testified that “Kayla” is her fourteen-year-old daughter and Sanders,
the defendant, is her ex-husband. According to Melodie, after she married Sanders,
1 We refer to witnesses other than law enforcement or medical personnel by pseudonyms. 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”). 2 she and Kayla lived with Sanders along with his three sons. Kayla lives part-time
with Melodie and part-time with Kayla’s biological father.
According to Melodie, the home they lived in with Sanders has a game and
TV room where Sanders set up a massage table. Melodie testified that Kayla was
active in sports since she was about age six or seven, including basketball, horse
riding, and running track. According to Melodie, Kayla complained about muscle
soreness from time to time. Melodie recalled that, when Kayla was about twelve
years old, Sanders started helping Kayla with stretching and massage to help her
soreness, although Sanders is not a massage therapist. Melodie testified that the
massages were initially done in the living area, but at some point, Sanders moved
the massage table to the upstairs game room.
Melodie recalled that after dinner on June 19, 2023, Sanders gave Kayla a
massage because Kayla had said her legs were bothering her. Melodie thought Kayla
was more quiet than usual after the massage. Melodie testified that the next morning,
Kayla said she did not feel well and was not going to school, and Kayla went to stay
with her biological father that day. According to Melodie, later in the morning she
received a call from Kayla, and Kayla was “crying hysterically.” Melodie testified
that Kayla told her, “He [Sanders] touched me[,]” and that Sanders “inserted his
finger inside her vagina [] when he massaged her [] [t]he night before.” At that point,
Melodie left work and went to get Kayla, she confronted Sanders when she got
3 home, and he said he did not do it. Melodie recalled that she packed a bag, and when
she left, Sanders did not appear upset. According to Melodie, when she left, she went
to her ex-husband’s house where Kayla was, and after a while, she left the house and
called the police. Melodie recalled that she met Deputy Sullivan at a gas station, she
told him what Kayla reported, and she gave the Deputy a written statement. At some
point, Melodie took Kayla to Safe Harbor for a forensic interview and for a SANE
exam. Melodie testified that on June 19, 2023, Kayla was thirteen years old.
According to Melodie, she decided to divorce Sanders after Kayla’s outcry. Melodie
identified the defendant as Sanders, her ex-husband and Kayla’s stepfather.
Testimony of “Jerry”
Jerry testified that he knew Sanders because his son played sports with
Sanders’s boys. Jerry recalled that in 2020, Sanders started working for his home
construction company, where Sanders became a superintendent. According to Jerry,
one time Sanders told him that Kayla had begun menstruating and that “[s]he’s a
woman now[,]” and Jerry told Sanders it was “awkward” and he did not want to hear
about it. Jerry also recalled Sanders telling him that Kayla had “a thick ass like her
mother[,]” which Jerry also regarded as awkward. Jerry testified that Sanders had
talked to him about giving Kayla massages. On cross-examination, Jerry testified
that he never allowed his daughter to be alone with Sanders.
4 Testimony of Detective Joshua Leal
Joshua Leal testified that he is a detective with the Montgomery County
Sheriff’s Office assigned to the Special Victims Unit, and he was assigned to the
case involving Sanders on June 20, 2023. Leal recalled that he contacted Melodie,
and after speaking with her, he scheduled a forensic interview for Kayla. According
to Leal, a SANE exam had already been scheduled when the case was assigned to
him. Leal testified that, after the forensic interview had occurred, he went to the
home where Kayla alleged the incident occurred to take photos.
Leal testified that he attempted to contact Sanders several times regarding
Kayla’s allegations and Sanders would not talk to him. After reviewing the results
of the SANE exam, Leal attempted to go to a hospital where Sanders was a patient
to interview him, and Sanders would not talk to Leal. Leal recalled that he presented
the District Attorney’s Office with the evidence he had gathered, and he was in
contact with Sanders when Sanders was arrested.
According to Leal, the SANE exam of Kayla was performed on June 20, 2023,
and the forensic interview was on June 22, 2023. Leal testified that, in his
professional experience, cases of sexual abuse by digital penetration do not always
involve physical injuries, DNA, or biological evidence.
5 Testimony of Kari Prihoda
Kari Prihoda testified that she is the program director at Children’s Safe
Harbor, where she has worked for eighteen years and where she is also a forensic
interviewer. Prihoda recalled that she interviewed Kayla on June 22, 2023, and
Kayla was “kind” during the interview, she was not upset, and she hesitated a few
times as though “unable to find her words.” Prihoda testified that Kayla made a
disclosure during the interview. In Prihoda’s opinion, Kayla made a “pretty quick
outcry, almost immediate[,]” Kayla was “actively ready to talk about what
happened[,]” and Kayla did not recant or take back anything she said during the
interview. Prihoda recalled that, in her interview, Kayla gave sensory details and
said she felt scared and uncomfortable.
Testimony of Erica Cuscina
Erica Cuscina testified that she is a registered nurse and a forensic nurse
examiner. Cuscina agreed that she performed a forensic medical exam of Kayla in
this case, when Kayla was thirteen years old. Cuscina recognized State’s Exhibit 18
as the record of her forensic medical exam of Kayla on June 20, 2023. Cuscina read
from her notes of her interview of Kayla as follows:
Cuscina: Do you know why you were brought here?
[Kayla]: Um, the incident that happened yesterday or the day before, Sunday.
Cuscina: Can you tell me about the incident? 6 [Kayla]: Um. So, okay, so, um, so when my stepfather, he asked me, because he, like - - because I play sports and stuff, he massaged me and stretched me, but I’ve never asked him to do it. He’s always asked me. And then - - so he asked me to massage - - no, stretch first. Stretch. And so he stretched me and stuff and then I was done and I was hanging out with my brothers. But while he was stretching me, he found two knots in my groin area on each side. And so after, then he asked me, [Kayla], do you want me to work on those knots, and I said, sure, and he did. He was massaging me. And then he, um, put his finger in my privates and - - yeah.
Cuscina: Has anything like this ever happened before?
[Kayla]: Huh-uh. [And patient shakes head side to side, indicating no.]
Cuscina: Where were you when this happened?
[Kayla]: I was on the massage table. ... Cuscina: When you say he put his finger in your privates, do you have another name for that area?
[Kayla]: Um, like, vagina, I guess.
Cuscina testified that she did not find any genital injuries on Kayla, which did not
surprise Cuscina based on the allegation of digital or finger penetration and because
tissue in the genital area heals very quickly. Cuscina testified that she performed a
buccal swab on Kayla to get DNA.
Testimony of Michelle Turner
Michelle Turner testified that she is a forensic scientist with the Texas
Department of Public Safety (“DPS”) in Houston where she works as a DNA analyst.
Turner testified that she performed DNA testing in this case, and she recognized
7 State’s Exhibit 20 as a copy of her DNA lab report. According to Turner, her report
listed Sanders, the defendant, as the suspect and Kayla as the victim. Turner testified
that no male DNA was detected in the swabs taken from Kayla. Turner testified that
she could not say whether a sexual assault had occurred based on her analysis and
that “[g]enerally speaking, just because you don’t get DNA on an item of evidence
doesn’t mean something didn’t occur.”
Kayla’s Testimony
Kayla was fourteen years old at the time of trial and she lives part of the time
with her mother Melodie and part of the time with her father, stepmother, and
stepbrothers. Kayla agreed that she likes to play a lot of sports, including basketball
and running.
Kayla testified that there are parts of her body that no one is supposed to touch,
including her privates, her chest area, her “butt,” and her “no-no square.” According
to Kayla, her stepfather, Morgan Sanders, touched her in one of those body parts and
she identified the defendant as Morgan Sanders. Kayla testified that sometimes
Sanders would help her in sports by massaging knots out of her body. Kayla recalled
that the massages began when she was about twelve years old and they occurred in
the living room, and later Sanders bought a massage table that he put in the upstairs
game room. Kayla testified that Sanders touched her on Father’s Day when she was
thirteen years old. She recalled that Sanders asked her if she wanted him to massage
8 knots out of her legs, and so she lay on the massage table. Kayla testified that Sanders
told her to wear loose-fitting shorts and not to wear underwear during her massages.
She recalled Sanders massaging her inner thighs and getting close to her “privates.”
According to Kayla, she told him he was getting close, he said “okay[,]” and then
“he touched [her] privates[]” and “he put his finger inside [her] privates.” Kayla
recalled that Sanders moved his finger inside her privates. Kayla testified that she
was scared and she “froze.” She further testified that Sanders then took his finger
out, and she “acted like nothing happened [] [b]ecause [she] never experienced
something like that [] and [she] was [] still in shock and [] didn’t know what to do.”
Kayla testified that he moved his finger around inside her, and she thought he did
this on purpose. Kayla thought her mother was downstairs when it occurred, and
although her little brother was in the room at the time, he would have been facing
away from the massage table, watching tv.
Kayla recalled that the next morning she was going to her father’s house, and
she felt “uneasy” because “something just happened to [her] that [she] never
experienced before [and she] didn’t know what to do.” She had not told her mother
what happened because she was scared and did not know how her mother would
react. Kayla testified that her mother dropped her off at her father’s house, and she
called her mother sometime in the afternoon to tell her mother what had happened
because Kayla could not keep what happened to her inside. According to Kayla, she
9 told her mother that the night before her stepfather had touched her inappropriately
while he was massaging her, and that he had put his finger inside of her. Kayla
testified that later she went to Safe Harbor for an interview, she was examined by a
nurse, and she told the interviewer and the nurse what had happened.
Kayla testified that there was another time about six months earlier, when
Sanders “got close to [her] no-no and [she] told him to, like, back off[]” and on
occasion he would also “slap [her] butt.” According to Kayla, she knew it was not
right for him to slap her behind, and it made her feel uncomfortable.
Testimony of “Hudson” and “Evan”
Sanders’s sons “Hudson” and “Evan” testified for the defense. Hudson
testified that he was thirteen years old at the time of trial and Sanders is his father.
Hudson recalled playing sports with his father and that Sanders was involved with
Kayla’s sports. Hudson testified that he knew Kayla had made an accusation against
Sanders, his father, and he recalled that his father gave Kayla a massage after they
watched a movie on Father’s Day. Hudson testified he did not hear Kayla cry out or
tell his father to stop during the massage and that he talked to them while his father
was giving Kayla the massage. He also agreed that sometimes his father gave him a
massage. According to Hudson, after Kayla’s massage that evening, all three of them
got on the couch and “snuggled together.”
10 Evan testified that he was fifteen years old at the time of trial and Sanders is
his father. Evan testified that as he was growing up, his father attended his sports
events. Evan recalled that he saw Kayla at Christmas of 2023, and she seemed
“normal” and friendly. Evan testified that on Father’s Day of 2023, his father gave
Kayla a massage after dinner.
Testimony of “Teresa” and “Kyle”
Teresa and Kyle, a married couple, testified for the defense. Teresa testified
that she had known Sanders for about fifteen years. She testified that she has two
girls, ages fifteen and twenty-two, and she recalled that she had seen Sanders with
her two children multiple times, and she never saw anything inappropriate. Teresa
also testified that she had seen Sanders as a leader in a children’s program at church.
According to Teresa, she was aware of the charge against Sanders, and she would
trust her daughters with him.
Kyle testified that he had known Sanders for about fifteen years, and Sanders
attended the church that he and Teresa attend. Kyle also testified that Sanders had
invited him to see some of Kayla’s basketball games. Kyle testified that his two
daughters play sports, and he has never seen any inappropriate or sexual behavior
towards his children by Sanders. Kyle testified, “I’ve never seen anything that would
concern me, and I’ve seen him around a lot of children at football games, [and] at
church [] programs.”
11 Testimony of “Josh”
Josh testified for the defense and explained that Sanders is his stepfather and
Hudson and Evan are his half-brothers. Josh testified that he has known Sanders
since Josh was ten years old and he also knew Kayla. Josh has an eight-year-old
daughter who is not fully verbal and she is autistic, and he never had a problem with
how Sanders played with or handled his daughter. Josh recalled that he had seen
Sanders coach football, and he thought Sanders was “very protective over children.”
Testimony of “Jimmy”
Jimmy testified for the defense and explained that he met Sanders in 2012
when their sons were playing football together. According to Jimmy, he had seen
Sanders around “[l]ots of children[,]” and he had never seen anything concerning
about Sanders’s interactions with children. Jimmy had also seen Sanders around
Jimmy’s children—boys and girls both—and Jimmy testified that Sanders’s
interactions were moral and safe, and he believed that Sanders has good moral
character.
Testimony of Morgan Sanders
Sanders testified that he was thirty-six years old at the time of trial, and he had
suffered a self-inflicted gunshot. According to Sanders, after high school, he joined
the Army where he served as a Ranger. Sanders testified that as an Army Ranger, he
had served in multiple foreign zones. Sanders further testified that on one occasion
12 while he was in the Army, his parachute did not deploy correctly, he sustained
multiple injuries to his back and legs, and he was medically discharged in 1999.
Sanders testified that his military experience was “[m]entally and emotionally
trying.” According to Sanders, after leaving the military, he sought medical and
psychological help from the VA. At some point, he married Melodie, and they had
a blended family. Sanders testified that his oldest son died by suicide at age eighteen
in 2022.
Sanders testified that he learned to give a massage when he was in sports as a
child. He also testified that, in the Army, he learned combat medic stretching and
physical training. Sanders testified that he tested to be a certified trainer, and he had
been in physical therapy for five years. Sanders recalled that he started giving
massages at home in 2017, he began with his wife Melodie, and later he gave
massages to some of the children, and according to Sanders, Melodie was aware he
gave Kayla massages.
Sanders testified that Kayla played basketball several days a week and she
also had private lessons, and that Kayla was a good player. According to Sanders,
Kayla also ran sprints, and Sanders was concerned that Kayla would work out her
legs too much.
Sanders recalled that on June 19, 2023—Father’s Day—after dinner, Kayla
asked him to help her with soreness and knots in her legs. Sanders testified that they
13 did some stretches, and then he gave her a deep tissue massage. At some point, Kayla
told him, “Dada, you’re getting a little close to my no-nos[,]” and Sanders stopped
the massage for a moment, and then resumed. Sanders testified that he did not put
his finger inside Kayla. Sanders further testified that he uses his index finger or
thumb to manipulate a muscle knot. Sanders recalled that Melodie called him the
next day and accused him of touching Kayla. Sanders felt very upset by the
accusation.
On cross-examination, Sanders agreed that on Tuesday night, after he and
Melodie had talked on Monday and Melodie left the house, he shot himself in the
head to kill himself. Sanders agreed that he texted with a friend and told the friend
there was no evidence in this case, and he said, “if [he] put [his] fat finger into that
tiny virgin no-no, there will be all kinds of evidence[.]”
On redirect, Sanders agreed that his military experience continues to live in
his mind, but he did not come up with the idea to shoot himself, and he did not shoot
himself because he did what he was accused of doing to Kayla. Sanders testified that
he shot himself for Melodie and to “free[] [his] wife and [his] daughter[]” from the
“monster” they believed he was and not because he felt guilty about the accusations
against him. According to Sanders, he was in the hospital a little more than seven
months after he shot himself.
14 Testimony of “Mack”
Mack testified that he had known Sanders since about 2004, and they had
worked together offshore. Mack recalled that their families had gotten together over
the years, and he had no reason to question Sanders’s morality. Mack testified that
he had never seen Sanders act inappropriately with his children and Mack would
trust Sanders with Mack’s children.
The jury found Sanders guilty as charged in the indictment. After hearing
additional evidence on punishment, the trial court assessed punishment at twenty
years of confinement. Sanders filed a Motion for New Trial and Motion for Arrest
in Judgment challenging the exclusion of an expert witness offered by the defense,
which was overruled by operation of law. Sanders filed a Notice of Appeal.
Issue
In a single issue, Appellant argues that the trial court abused its discretion by
excluding the testimony of an expert witness offered by the defense. The expert
witness was Rory Carruthers, a licensed professional counselor who had been
Appellant’s counselor. According to Appellant, Carruthers would have offered an
opinion on the cause of Appellant’s suicide attempt and would have offered an
opinion that the attempt “was caused by a sense of duty rather than guilt.” Appellant
argues that, if the jurors had heard Carruthers’s testimony, there is a reasonable
likelihood that they would not have convicted him. Appellant concedes that the
15 defense disclosed the expert witness late and in violation of the standing discovery
order.
Standard of Review
We review a trial court’s ruling on the admission or exclusion of evidence
under an abuse of discretion standard of review. Colone v. State, 573 S.W.3d 249,
263-64 (Tex. Crim. App. 2019). 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). If the trial court’s decision is
correct on any theory of law applicable to the case, we will uphold the decision. De
La Paz, 279 S.W.3d at 344; Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App.
2002). The erroneous admission or exclusion of evidence is generally reviewed
under the standard for non-constitutional error contained in Rule 44.2(b) of the
Texas Rules of Appellate Procedure if the trial court’s ruling merely offends the
rules of evidence. See Walters v. State, 247 S.W.3d 204, 218-19 (Tex. Crim. App.
2007); Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001).
16 Evidence is relevant if it has a tendency to make the existence of any fact of
consequence more or less probable than it would be without the evidence. Gonzalez
v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018) (citing Tex. R. Evid. 401).
Relevant evidence is generally admissible. See Tex. R. Evid. 402; Gonzalez, 544
S.W.3d at 370. Even if the evidence is relevant, a trial court may determine that it is
not admissible for other reasons, including exclusion under evidentiary Rule 403.
See Tex. R. Evid. 403.
In considering whether to admit expert testimony, a trial court acts as a
gatekeeper and makes a threshold determination whether the testimony “will help
the trier of fact understand the evidence or determine a fact in issue.” Kelly v. State,
824 S.W.2d 568, 572 (Tex. Crim. App. 1992); see also Tex. R. Evid. 702 (requiring
that expert testimony help the factfinder to understand the evidence or to determine
a fact issue); Somers v. State, 368 S.W.3d 528, 536 (Tex. Crim. App. 2012). A trial
court also must determine whether the expert’s opinion is reliable—whether it is
based on a valid scientific theory and a technique that is valid and properly applied.
See Kelly, 824 S.W.2d at 573. Even if the trial court determines that an expert’s
testimony is reliable, the court must also apply Rule 403 to determine whether the
expert’s testimony might be unhelpful to the factfinder—for example, because it is
merely cumulative, would tend to confuse or mislead the jury, or because it would
17 consume an inordinate amount of time at trial. See id. at 572 (citing Tex. R. Evid.
403).
Analysis
During the defense’s case in chief, the State requested a Rule 702 hearing for
Rory Carruthers, whom the defense proposed to call as a witness. Outside the
presence of the jury, Carruthers testified that he is a licensed professional counselor,
he often works with the VA, and that he had dealt with many veterans with PTSD or
who had attempted suicide. Carruthers testified that he treated Sanders two different
time periods—in 2021 to 2022 and again beginning in January of 2024. Carruthers
agreed that he would testify about Sanders’s state of mind in January of 2024 and
forward based on his counseling sessions with Sanders, “the history of the
veteran[,]” and clinical testing. Carruthers testified that he believed he could give an
opinion on Sanders’s state of mind when he tried to shoot himself. Carruthers agreed
he had seen no offense reports or information about the case and he knew nothing
other than what Sanders had told him.
The defense told the trial court that Carruthers could testify about the effect
of the accusations against Sanders in the context of Sanders’s military experience
and that Sanders attempted suicide because he did not commit the offense. The trial
court stated that it had not heard “the scientific or the technical or the specialized
knowledge that would help the trier of fact to understand the evidence or to
18 determine a fact in issue.” The State agreed, and it also argued that the defense had
not given sufficient notice of this expert, and that because Carruthers’s testimony
related to the time period from January of 2024 forward, his testimony was not
relevant. The trial court explained: (1) there was nothing in the indictment about an
allegation of attempted suicide, and attempting to commit suicide was not for the
jury’s deliberation; (2) there was no evidence of Carruthers’s specialized, technical,
or scientific knowledge; (3) the trial court had not heard the actual opinion that
would be given and that would help the trier of fact to understand the evidence or
determine a fact in issue; (4) Carruthers’s proposed testimony would relate to the
time period beginning January 10, 2024 and forward; (5) the testimony might have
a place in a punishment hearing; and (6) there was insufficient notice of the expert
and his testimony. The trial court ruled that the expert’s testimony should not be
included under Rules 702 and 705.
Carruthers testified during the 702 hearing that he would offer a clinical
opinion about Sanders’s state of mind based on his “most recent” counseling
sessions with Sanders, which began in January of 2024, which was after the alleged
sexual assault and after the attempted suicide. Sanders’s mental state during his
counseling sessions or his mental state at the time of his suicide attempt was not a
fact issue for the jury to decide. See Tex. R. Evid. 702 (an expert witness may testify
about matters that will help the factfinder “to understand the evidence or to
19 determine a fact in issue.”); Nejnaoui v. State, 44 S.W.3d 111, 118 (Tex. App.—
Houston [14th Dist.] 2001, pet. ref’d) (trial court did not err in excluding expert
testimony by the defendant’s psychiatrist as not relevant to any issue before the jury
because the expert had no personal knowledge of defendant’s condition at the time
of the offense). Additionally, Sanders himself testified about his military experience,
his reactions when accused, and his suicide attempt, and the trial court could have
concluded that Carruthers’s testimony about Sanders’s state of mind during his
counseling sessions would be irrelevant, or redundant and cumulative. See Buntion
v. State, 482 S.W.3d 58, 81 (Tex. Crim. App. 2016) (upholding the trial court’s
ruling excluding cumulative evidence).
The trial court also explained that in the Rule 702 hearing the defense did not
identify any specialized, technical, or scientific knowledge that would form the basis
for Carruthers’s opinion testimony. Carruthers testified that he had been licensed as
a counselor since October of 2018, and he had “several certifications through the
VA[]” related to PTSD and suicide. However, Carruthers also testified that his
testimony would be based on his counseling sessions with Sanders and on “the
history of the veteran[.]” When a proposed behavioral science expert does not
identify the principles of forensic psychiatry on which he relies nor does he rely on
any peer-reviewed books, articles, journals, or other experts, the trial court may
reasonably conclude that the proposed testimony does not meet the criteria for
20 admission as expert testimony. See Coble v. State, 330 S.W.3d 253, 278-79 (Tex.
Crim. App. 2010). The trial court could have reasonably concluded that the defense
failed to sufficiently establish that Carruthers’s opinion would be based on scientific,
technical, or other specialized knowledge. See id. Additionally, here Appellant
concedes that the defense failed to timely disclose the witness under the trial court’s
scheduling order. Based on the record before us, we conclude that the trial court did
not abuse its discretion by excluding the testimony of Carruthers because the defense
failed to meet the criteria in Texas Rule of Evidence 702 and Kelly. See Tex. R. Evid.
702; Kelly, 824 S.W.2d at 572.
That said, even if the trial court erred in excluding the witness, we find no
harm. Generally, the erroneous admission or exclusion of evidence is non-
constitutional error if the trial court’s ruling merely offends the rules of evidence.
See Tex. R. App. P. 44.2(b); Walters, 247 S.W.3d at 218-19; Solomon, 49 S.W.3d at
365. Reversal is required only if the exclusion of the evidence affected a substantial
right of the defendant. See Tex. R. App. P. 44.2(a); Morales v. State, 32 S.W.3d 862,
867 (Tex. Crim. App. 2000).
Kayla testified that Sanders instructed her to wear loose shorts and no
underwear when he gave her a massage. She also testified that during the massage
Sanders gave her on Father’s Day in 2023, Sanders put his finger inside her vagina
and moved his finger around. Kayla reported the incident to her mother the next day.
21 The forensic examiner nurse testified about her examination of Kayla and Kayla’s
outcry, and the nurse’s testimony was consistent with Kayla’s and Melodie’s
testimony about the incident. Kari Prihoda, the forensic interviewer at Children’s
Safe Harbor, testified that Kayla made a quick outcry during the interview, Kayla
did not recant anything, and Kayla’s report included sensory details. Sanders denied
that he sexually assaulted Kayla but he agreed he gave her a massage on the day in
question, and he agreed that Kayla told him he was getting close to her “no-no” spot.
The jury was permitted to believe or disbelieve any part of a witness’s
testimony, including the defendant’s testimony. See Jones v. State, 984 S.W.2d 254,
258 (Tex. Crim. App. 1998) (en banc). The testimony of a child victim is sufficient
to support a conviction for sexual assault of a child. See Tex. Code Crim. Proc. Ann.
art. 38.07; Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978); see also
Lee v. State, 176 SW.3d 452, 458 (Tex. App.—Houston [1st Dist.] 2004), aff’d, 206
S.W.3d 620 (Tex. Crim. App. 2006). Appellant provides no support for his assertion
that Carruthers would have explained “how a person with combat experience would
react to accusations of sexual assault differently than a normal person[,]” nor do we
find any such evidence in the record during the Rule 702 hearing. We conclude that
Appellant’s assertion that the jury would likely not have convicted him had they
heard from Carruthers is conclusory and insufficient to obtain a reversal. See
Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (the failure to brief
22 whether alleged error caused harm waived the issue on appeal); Chaves v. State, 630
S.W.3d 541, 558 (Tex. App.—Houston [1st Dist.] 2021, no pet.) (rejecting
appellant’s conclusory assertion, without citation to authority or analysis, that he
was harmed by the trial court’s admission of certain evidence).
We conclude that the trial court’s ruling excluding Carruthers’s testimony was
within the zone of reasonable disagreement, and we find no error nor any basis for
reversal. See De La Paz, 279 S.W.3d at 343-44; Cardenas, 30 S.W.3d at 393. We
overrule Appellant’s issue on appeal, and we affirm the trial court’s judgment of
AFFIRMED.
LEANNE JOHNSON Justice
Submitted on May 19, 2025 Opinion Delivered July 30, 2025 Do Not Publish
Before Golemon, C.J., Johnson and Chambers, JJ.