Omar Huitron Hernandez v. State

• Court: Court of Appeals of Texas
• Decided: October 10, 2018
• Docket: 09-16-00390-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ___________________

NO. 09-16-00388-CR NO. 09-16-00389-CR NO. 09-16-00390-CR ___________________

OMAR HUITRON HERNANDEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 359th District Court Montgomery County, Texas Trial Cause Nos. 16-09-10158-CR and 16-09-10164-CR (Counts 1 & 2) __________________________________________________________________

MEMORANDUM OPINION

In twelve issues, Omar Huitron Hernandez argues that his three judgments of

conviction for sexually assaulting Gina,1 his child, should be reversed. Grouped into

1 We identify the victim and all her family members, except her father, with pseudonyms. See Tex. Const. art. I, § 30(a)(1) (granting victims of crimes “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). 1 topics, Hernandez contends that (1) the judgments of conviction should be reversed

because they are unsupported by evidence sufficient to prove the sexual assaults

occurred, (2) the trial court should not have allowed the jury to consider certain

evidence and testimony during his trial, and (3) the errors in the trial deprived him

of a fair trial and his sentence to life in prison is cruel and unusual. For the reasons

explained below, we affirm.

Background

In June 2014, fifteen-year-old Gina called 911 and told the operator that her

father, Hernandez, had been sexually abusing her for years. Gina, Gina’s mother

“Maria,” and Hernandez, were three of the witnesses who testified in the guilt-

innocence phase of Hernandez’s trial. Together with a specific scientific test result

and the testimony about its significance, the testimony before the jury from

Hernandez, Maria, and Gina is the primary evidence the jury likely used in reaching

its conclusions to find Hernandez guilty of the various sexual assaults.

The parties tried the case in a jury trial in September 2016. During the trial,

Gina testified that Hernandez began abusing her when she “was little.” Gina testified

during the trial that Hernandez penetrated her sexual organ with his penis when she

was eight years old, and that he continued to do so on a regular basis until she

2 reported his conduct to the police. According to Gina, she and Hernandez had sexual

intercourse for the last time in his truck, two days before the day she called 911.

Gina provided detailed descriptions about where the various sexual assaults

that were alleged in the indictments occurred. When asked why she never reported

Hernandez’s sexual misconduct before June 2014, Gina explained that Hernandez

had threatened to kill her and to kill Maria if she ever told anyone about his conduct.

Gina also testified that Hernandez told her that if she told Maria about the fact she

and Hernandez had engaged in sexual acts, he would blame Gina so that “my family

would never want me again.”

Maria testified during the trial about what occurred to precipitate Gina’s

decision to call 911. According to Maria, Gina and Hernandez argued often with

each other about Gina’s internet usage, which Maria explained that Hernandez

believed was interfering with Gina’s grades. Maria explained that just before Gina

called 911, Gina and Hernandez had been arguing because Hernandez had taken

away Gina’s access to the internet. According to Maria, Gina told Hernandez that

“he was a bad father.” Around ten o’clock p.m. that same evening, Maria heard Gina

call 911. When asked why Gina was calling 911, Maria testified that Gina said, “she

was calling them because her dad had been sexually abusing her since she was

around 10-years-old.” Maria also testified that right after Gina told her that

3 Hernandez had been sexually abusing her for years, Maria confronted him about his

alleged sexual misconduct. According to Maria, Hernandez responded to her by

stating: “[Gina] provoked him.” The jury could have reasonably viewed

Hernandez’s statement as a tacit admission that sexual abuse had occurred. After

Hernandez blamed Gina for her role in his alleged misconduct, Maria slapped him

and told him to leave. Maria testified that as Hernandez was leaving, he asked Gina

and Maria “to forgive him.” Maria confirmed that Hernandez fled the house in his

truck before the police arrived in response to Gina’s call to 911.

When Hernandez testified in the trial, he did not dispute that he fled the house

before the police arrived. Hernandez testified that after Gina called 911, he went to

Houston, borrowed a van from his brothers, drove the van to the Mexican border,

left the van in Texas, and entered Mexico on a bus. Hernandez explained that after

he arrived in Mexico, he contacted Gina through an internet messenger service.

Without objection, the trial court admitted into evidence the original Spanish and the

English-translated copies of the messages that Gina received from Hernandez while

he was in Mexico. As translated, one message said: “[My daughter] please forgive

me[.] [My daughter] you have a very big heart and I know you don’t hate me forgive

me[.]” As translated another of the messages states: “[A]nswer me little girl[.] I

know the damage that I did to you but I am sorry. I am alone and I don’t know what

4 to do[.] I lost all my family.” During cross-examination, Hernandez made a

statement relevant to the view the jury likely adopted regarding the significance of

a male-chromosome analysis of the material extracted from a swab linked to the

inside of Gina’s sexual organ. According to Hernandez, he was not claiming that

Gina had engaged in any sexual acts with any of his brothers or his son, the other

male members in his familial line.

Hernandez denied having ever sexually assaulted Gina when he testified at

trial. He sought to explain why he fled his home and went to Mexico, explaining that

he was afraid of the police because he did not have the proper documents to live in

the United States. Hernandez also provided the jury with an innocent explanation for

the messages he sent to Gina while he was in Mexico, indicating that he intended the

messages to convey that he was sorry for telling Gina she was not his daughter.

Hernandez lived in Mexico for around three months before he returned to the

United States. When he returned, he went to Houston where his brothers lived and

got a job. When the police located him, Hernandez saw them raiding the place where

he was working so he tried to flee. Both Hernandez and Louis LaBarge, a United

States Marshall involved in the operation that led to Hernandez’s arrest, described

the unsuccessful efforts Hernandez made to avoid being arrested where he worked.

5 Two Montgomery County Sheriff’s Department Officers, Deputy Zachary

Winford and Detective Fadi Rizk, testified about the investigation that the police

conducted into Hernandez’s case. Deputy Winford went to Gina’s house on the

evening she called 911. According to Deputy Winford, he obtained written

statements that evening from Maria and Gina, he photographed various items in the

home that he thought might be relevant to the case, and he collected the clothing that

Gina suggested she was wearing during the sexual assaults that she alleged had

occurred two days before she called 911. 2 Deputy Winford recalled telling either

Gina or Maria that Gina should get a SANE 3 exam. Although Gina gave Deputy

Winford a written statement and he filled out a police report, neither document was

offered or admitted into evidence during the trial. We also note that Deputy Winford

testified that Gina and Maria told him that the clothing he collected from Gina the

night he went to their home had been washed. Winford described Maria’s and Gina’s

2 Testimony by the forensic scientists who performed DNA tests on various items of Gina’s clothing revealed that the Crime Lab never tested the clothes that Deputy Winford collected from Gina for the presence of DNA. 3 During Deputy Winford’s testimony, the prosecutor advised the jury that the acronym “SANE” stood for a “Sexual Assault Nurse Exam. Rape kit is kind of a common name - - term used for that.”

6 appearance that evening as “[v]ery upset, crying[,]” but he also stated that he did not

remember much more about the investigation he conducted while at their home.

Detective Rizk is the detective who was placed in charge of the investigation

into Hernandez’s case. During his testimony, he explained that he was present when

Gina gave a forensic interview to a forensic examiner, Mayra Domingue, at

Children’s Safe Harbor. The prosecutor asked the detective about his impression of

Gina in the interview: he stated that he found Gina “to be very believable[.]” Defense

counsel objected to the detective’s response, arguing that Detective Rizk had

improperly commented on Gina’s credibility. The trial court sustained the objection

and instructed the jury to disregard the answer. But when defense counsel requested

a mistrial, the court denied the motion.

Accompanied by Gina, Detective Rizk went to several locations where Gina

claimed the various sexual assaults had occurred. While there, he took photographs,

but he explained in the trial that he found no physical items of evidence containing

biological material that could have been subjected to further testing to corroborate

Gina’s claims. Detective Rizk also collected DNA swabs from Hernandez, which he

sent to the crime lab for testing.

Mayra Domingue, the person who conducted Gina’s forensic interview,

testified extensively in the trial about what Gina told her during the interview. The

7 trial court allowed Mayra to relate what Gina told her to the jury after designating

Mayra “as an outcry witness under [article] 38.072.” See Tex. Code Crim. Proc. Ann.

art. 38.072 (West Supp. 2017). During the trial, Mayra testified that Gina “described

[Hernandez] as a child abuser and a sexual abuser, because he used to make her have

sex with him by force.” Gina told Mayra that Hernandez began abusing her when

she was in first or second grade. Gina also gave Mayra a detailed description of the

various sexual assaults, including that Hernandez had touched and penetrated Gina’s

sexual organ. Mayra testified that Gina told her that her sexual encounters with her

father occurred monthly after she became a teenager. Mayra also stated that Gina

told her the sexual assaults had occurred over the years in a house where the family

formerly lived, at an abandoned property, and inside Hernandez’s truck.

Two nurses trained in performing sexual assault exams, Jamie Ferrell and

Kara Temple, discussed the purpose of the examinations they perform in sexual

assault cases on individuals who claim to have been the victim of a sexual assault.

Ferrell testified that she is a certified sexual assault nurse, and the head of forensic

nursing at Memorial Herman Health Systems. When Ferrell testified, she described

the general techniques and purposes of conducting a sexual assault exam. Ferrell

explained that even if a patient has no signs of having suffered a physical injury, the

8 finding of no injury would not necessarily cause her to conclude that no sexual

assault occurred.4

Kara Temple, the nurse who conducted Gina’s sexual assault examination, is

the other nurse who testified in the trial. According to Temple, when she examined

Gina, she was a certified sexual assault nurse. 5 Temple explained that during the

sexual assault examination she performed on Gina, Gina told her that Hernandez

sexually assaulted her three days before the exam. Temple stated that Gina gave her

a history that the last of the assaults occurred when Hernandez penetrated Gina’s

sexual organ with his penis. Temple also testified that Gina told her that Hernandez

had sexually assaulted her one week before the most recent assault, and that he had

been sexually assaulting her for more than ten years.

Temple described the physical examination that she performed on Gina.

According to Temple, she identified nothing to show that Gina had suffered a

physical injury. Temple explained that she collected biological samples from various

locations on Gina’s body, including a swab from the inside of Gina’s sexual organ.

4 On cross-examination, Ferrell agreed that the lack of physical trauma might also mean that no sexual assault had occurred. 5 Temple was no longer certified as a sexual assault nurse when the trial occurred. She explained that she still works as a nurse, and that she allowed her certification to lapse because she decided to change her nursing goals. 9 Temple stated that she put the swabs she collected during her examination of Gina

into a package, which she sealed, and that she then placed the package in an evidence

locker.

Two witnesses from the Department of Public Safety’s crime lab, Adam

Vinson and Kathleen McKinney, described the testing they performed on the various

items they received from the individuals involved in the investigation of

Hernandez’s case. Vinson explained how he used swabs to collect biological

material from the various items of clothing that were collected by the nurse during

Gina’s sexual assault exam. He explained that he made slides from the material that

he collected with the cotton swabs.

McKinney, a forensic scientist at the Texas Department of Public Safety’s

crime lab in Houston, explained that she prepared two scientific reports about the

tests the crime lab performed on the materials tested there. Over Hernandez’s

objections, the trial court allowed the jury to consider the reports McKinney

prepared about the tests the crime lab performed on the various swabs that the chain-

of-custody testimony linked to Hernandez’s case. McKinney explained that the

crime lab performed a DNA test on a swab linked to the underwear that Gina

removed when she was examined by the sexual assault nurse. According to

McKinney, the swab of the inside of Gina’s underwear contained a DNA mixture

10 that came from more than one individual.6 The profiles extracted from that mixture

revealed a high probability that Hernandez could have contributed to the mixture

found on the swab associated with the inside of Gina’s underwear. Yet McKinney

conceded on cross-examination that if the clothes were washed with the clothes of

other family members, the DNA on a washed item of clothing could originate from

a transfer that might have occurred when the clothes were laundered.

McKinney’s main testimony as it is relevant to the appeal concerns the testing

she performed on swabs linked to Gina’s sexual organ. According to McKinney, she

performed a Y-STR chromosome test on the swab linked to the inside of Gina’s

sexual organ, and she described the test as one that analyzes biological material for

the presence of male, Y chromosomes. According to McKinney, the results of the

specialized, Y-chromosome tests revealed “[a] partial Y-STR profile [obtained from

a vaginal swab associated with Gina’s sexual organ, which] is consistent with the Y-

6 The evidence in the trial established that the pair of underwear Gina provided to the sexual assault nurse examiner was not the pair that Gina was wearing on the date she testified that she last engaged in sexual intercourse with Hernandez. Additionally, the State made no effort to prove that the underwear collected during the sexual assault exam was specifically tied to any of the sexual assaults at issue in the trial. In contrast, Deputy Winford collected the underwear that Gina claimed she was wearing when she last had sexual intercourse with Hernandez. While the Montgomery County Sheriff’s Office examined these, the screening test they conducted was negative for semen and although the underwear was forwarded to the crime lab, the crime lab never tested them for reasons that are not explained by the record. 11 STR profile of Omar Hernandez.” McKinney’s Y-chromosome report concludes by

stating that “any paternally-related male relatives of Omar Hernandez cannot be

excluded as being the contributor of this male DNA profile.”

Issues

For convenience, we divide Hernandez’s twelve issues into three general

topics, (1) Challenges to the Sufficiency of the Evidence, (2) Evidentiary Issues, and

(3) Cumulative Error and Excessive Sentence. The issues that Hernandez raises

challenge his convictions in (1) trial court Cause Number 16-09-10164-CR (Count

II), which addresses Hernandez’s conviction for continuous sexual abuse of a child;

(2) trial court Cause Number 16-09-10164-CR (Count 1), which addresses

Hernandez’s conviction for the aggravated sexual assault of a child; and (3) trial

court Cause Number 16-09-10158-CR, which addresses Hernandez’s conviction on

the charge of sexually assaulting a child. See Tex. Penal Code Ann. §§ 21.02(b),

22.011(a)(2)(A), 22.021(a)(1)(B) (West Supp. 2017).

I. Challenges to the Sufficiency of the Evidence

A. Standard of Review

In issues nine, ten, and eleven, Hernandez challenges the sufficiency of the

evidence supporting each of his convictions. If Hernandez were to prevail on these

issues, he would be entitled to judgments of acquittal. See

12 S.W.3d 893, 898-902 (Tex. Crim. App. 2010). Because these issues would give

Hernandez the greatest relief if they have merit, we begin our discussion with them.

See Tex. R. App. P. 43.3; Campbell v. State, 125 S.W.3d 1, 4 n.1 (Tex. App.—

Houston [14th Dist.] 2002, no pet.) (stating that a reviewing court should first

address the issues affording the appellant the greatest relief).

We review the sufficiency of the evidence to support a conviction under the

standard set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Brooks, 323

S.W.3d at 895. Under that standard, we view all the evidence the jury considered in

deciding the case in the light that most favors the verdict. Temple v. State, 390

S.W.3d 341, 360 (Tex. Crim. App. 2013) (citing Jackson, 443 U.S. at 318-19). After

considering the evidence in that light, we determine if a rational factfinder could

have found in the State’s favor on all the elements of the offense that it was required

to prove to establish that the defendant committed the charged crime based on a

standard of beyond reasonable doubt. Id.

“After giving proper deference to the factfinder’s role, we will uphold the

verdict unless a rational factfinder must have had reasonable doubt as to any essential

element” of the crime. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009).

In assessing whether the evidence is sufficient to support the jury’s verdict, we note

that appellate courts must be deferential to the decisions that juries make since juries

13 are given the responsibility to judge the credibility and the weight that should be

assigned to the evidence that might be admitted during a defendant’s trial. Id.

Generally, the jury may choose to believe some, all, or none of the testimony

admitted into evidence in the trial. Chambers v. State, 805 S.W.2d 459, 461 (Tex.

Crim. App. 1991). And the jury may draw multiple reasonable inferences from a

given set of facts so long as each inference is supported by the evidence before it in

the trial. Temple, 390 S.W.3d at 360. If the record would have allowed the jury from

the inferences that it drew to go either way, we presume the jury resolved any

conflicts that existed in the evidence in favor of the verdict that it reached. Id. Thus,

we defer to the jury’s determination over the inferences that it chose to draw from

the facts proven in the defendant’s trial. Id.

In reviewing a challenge claiming the evidence cannot support the jury’s

verdict, we consider all the evidence admitted during the trial even if the trial court

erred when admitting it. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007). A jury may find either direct or circumstantial evidence to have been

probative of the defendant’s guilt, and “‘circumstantial evidence alone can be

sufficient to establish guilt.’” Temple, 390 S.W.3d at 359 (quoting Hooper v. State,

214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). In a circumstantial evidence case, each

of the facts admitted before the jury need not point directly to the defendant’s guilt

14 so long as the combined and cumulative force of all the incriminating circumstances

warrants the jury’s conclusion that the defendant was guilty of the elements of the

crime with which he was charged. Id.; Hooper, 214 S.W.3d at 13.

In cases involving sexual assaults committed against children, the Texas Court

of Criminal Appeals has determined that a child’s testimony alone is sufficient to

prove that the alleged assault occurred. Garcia v. State, 563 S.W.2d 925, 928 (Tex.

Crim. App. 1978). The Code of Criminal Procedure codifies this concept into the

law since it provides that a conviction for sexually assaulting a child is supportable

by “the uncorroborated testimony of the victim of the sexual offense[.]” Tex. Code

Crim. Proc. Ann. art. 38.07(a) (West Supp. 2017).

B. Analysis, Issue Nine through Eleven

The State charged Hernandez with three crimes alleging that he committed

various sexual assaults, the earliest of which occurred in 2004. In his brief,

Hernandez suggests the evidence admitted during his trial is insufficient to support

his convictions. Mainly, Hernandez argues that the jury should not have accepted

Gina’s testimony because she did not give consistent testimony about the various

details relating to the various assaults, such as how old she remembered being when

the first of the sexual assaults occurred. Also, Hernandez argues that Gina gave

accounts that were not entirely consistent about the details of the assaults to the

15 various individuals she told of the assaults, including the assault Gina claims

occurred several days before she called 911. Finally, Hernandez suggests that

because Gina was angry with him about disciplining her by restricting her internet

use, she retaliated against him by creating a false story to get him into trouble.

Hernandez is also critical of the manner the police handled the investigation

into his case. He noted that Detective Rizk never located any items of physical

evidence that Gina described that might have corroborated Gina’s version about

where the alleged sexual assaults occurred. Hernandez points to the fact that the

sexual assault nurse failed to find any physical injuries on Gina’s body, a lack of

evidence that he argues is important to evaluating the weight of the evidence

regarding that alleged assault. Hernandez suggests an innocent explanation exists for

the fact that his DNA was found inside the underwear Gina gave the sexual assault

nurse, noting that the testimony showed that it had been washed with other family

clothes before it was tested at the crime lab. Hernandez concludes that because Gina

was angry with him, and given the lack of any strong corroborating evidence, a

reasonable jury would have disregarded Gina’s testimony and found him not guilty.

A careful review of the evidence, however, reveals that Hernandez’s

convictions do not rest solely on Gina’s testimony. For example, the Y-STR report

is based on a specimen that the sexual assault nurse obtained from inside Gina’s

16 sexual organ about three days after the last sexual assault. From the testing on that

specimen, the jury could have reasonably concluded that the specimen found inside

Gina’s sexual organ contained a male, Y chromosome, which was consistent with

any male in Hernandez’s direct familial line. Given Hernandez’s own testimony that

he was not claiming that Gina had been having sexual intercourse with any of the

other males in his family line, a reasonable jury could conclude that Hernandez was

the donor of the chromosome profile linked to the swab associated with Gina’s

sexual organ.

As the finder of fact, the jury also could reasonably view the evidence of

Hernandez’s flight from his home after Gina accused him of sexual misconduct as

evidence showing that he knew he was guilty of sexually assaulting her. See Clay v.

State, 240 S.W.3d 895, 905 & n.11 (Tex. Crim. App. 2007) (noting that evidence of

flight suggests a consciousness of guilt). Hernandez fled police not just once but

twice, as he attempted to avoid being arrested when the police came to the location

where he was working to arrest him based on charges the State filed after Gina

reported the alleged sexual assaults. When viewed in the light most favorable to the

jury’s verdict, the evidence that Hernandez fled is circumstantial evidence that

supports the jury’s verdict finding Hernandez guilty of the various sexual assaults.

17 The jury was also entitled to view the messages Hernandez sent Gina as

evidence supporting the findings that it made regarding Hernandez’s guilt. Like

flight, a jury may view an apology as evidence showing a defendant’s guilt. See

Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no writ). When

weighing the likely effect of evidence, courts have stated that “consciousness of guilt

is perhaps one of the strongest kinds of evidence of guilt.” Id. (internal quotations

omitted). Thus, even though a defendant has phrased an apology in vague terms, a

jury has the right to view the apology as incriminatory evidence as related to

questions surrounding the defendant’s alleged guilt. See Yost v. State, 222 S.W.3d

865, 877 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (concluding that a letter

from accused to victim saying “I am sorry for everything” was a significant

circumstance suggesting guilt).

In a criminal case, juries have a right to decide whether the witnesses who

testified were credible and to decide what weight, if any, should be attached to a

witness’s testimony. See Jackson, 443 U.S. at 319. Ultimately, when the evidence

and inferences available from it are in conflict, appellate courts must presume that

the jury resolved any conflicts that existed in favor of the manner the jury voted to

reach its unanimous verdict. See id., 443 U.S. at 326.

18 In conclusion, while Hernandez points to various conflicts and inconsistencies

that exist in the evidence admitted during his trial, the conflicts that he points out are

not so significant that the jury could not have reasonably decided to credit Gina’s

testimony that the sexual assaults occurred. Id. We conclude that issues nine through

eleven which assert the evidence was insufficient to support the verdict lack merit,

so they are overruled.

II. Evidentiary Issues

In issues one through six, Hernandez complains that the trial court abused its

discretion by admitting various testimony and exhibits during his trial. Before

addressing the specifics of the complaints in detail, we address the standard of

review used to evaluate a trial court’s decisions to either admit or to exclude

evidence in a trial.

To establish that a trial court erred when it admitted or excluded evidence, the

party complaining about the ruling must show in the appeal that the decision the trial

court made constituted an abuse-of-discretion. Carrasco v. State, 154 S.W.3d 127,

129 (Tex. Crim. App. 2005). In contrast, if the trial court’s ruling is correct under

any theory of law that applies in the case, the ruling will not be overturned on appeal.

See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). To establish that

19 error occurred, a party must establish that the evidentiary ruling at issue “was so

clearly wrong as to lie outside the zone within which reasonable people might

disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008) (citing

Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003)).

B. Gina’s 911 call and Maria’s testimony about what Gina told her just before Gina called 911

In issue one, Hernandez argues that the trial court erred when it admitted

Maria’s testimony about what she heard Gina say just before Gina called 911. During

the trial, Maria told the jury that when she asked Gina why Gina was calling the

police, Gina said that Hernandez had been abusing her since she was ten years old.

The transcript from the trial shows that the trial court admitted Maria’s testimony

about Gina’s statement as excited utterance, which is a recognized type of exception

to the rule that generally prohibits the admission of hearsay in a trial. See Tex. R.

Evid. 803(2) (making statements relating to a startling event or condition, made

while the declarant was under the stress of excitement that it caused, admissible as

exceptions to the general rule that prohibits the admission of hearsay).

The Texas Court of Criminal Appeals applies these three criteria to decide if

a statement was properly admitted at a trial as an excited utterance: “(1) the ‘exciting

event’ should be startling enough to evoke a truly spontaneous reaction from the

declarant; (2) the reaction to the startling event should be quick enough to avoid the 20 possibility of fabrication; and (3) the resulting statement should be sufficiently

‘related to’ the startling event, to ensure the reliability and trustworthiness of that

statement.” McCarty v. State, 257 S.W.3d 238, 241 (Tex. Crim. App. 2008). The

startling event need not be the original event, but “may trigger a spontaneous

statement that relates to a much earlier incident.” Id. at 240 (emphasis in original).

An abuse-of-discretion standard applies to the trial court’s decision to classify a

statement as an excited utterance. See Wall v. State, 184 S.W.3d 730, 743 (Tex.

Crim. App. 2006).

The circumstances that Gina and Maria described in the trial, which led to

Gina’s decision to call 911, allowed the trial court to conclude that Gina was under

significant emotional distress shortly before, during, and immediately after she

called 911. Just before Gina called 911, Maria overheard Hernandez and Gina

arguing after Hernandez told Gina that she was “stupid.” Before Gina made the

statement at issue, she first tried to call 911 with her parents in a nearby room, where

she could have reasonably been concerned that they might overhear her

conversation. Given Gina’s testimony about the threats Hernandez had historically

made over the years the alleged abuse had occurred, together with Gina’s proximity

to her parents on the night she called 911, the trial court could reasonably conclude

that Gina was in an emotionally charged state from a startling event, the argument

21 she had with Hernandez that night, triggered by the sexual assault two days before,

which led to Gina making the statements that Maria heard before, during, and shortly

after Gina called 911. Given the context in which the call occurred, the trial court

could reasonably conclude that Gina was in a charged emotional state when Maria

heard the statements Gina made because she had not had time to reflect on the

comments as they relate to the time frame surrounding the phone call Gina made to

911. See Tex. R. Evid. 803(2).

In his brief, Hernandez views the startling event precipitating the case as one

that related solely to the alleged sexual assault that occurred two days before Gina

called 911. But the circumstances described by the testimony allowed the trial court

to conclude that a combination of startling events, which began with the last sexual

assault, triggered by an emotionally charged argument between a teenager and her

father, was the startling circumstance that gave the statements Maria heard Gina

make the circumstantial guarantee of trustworthiness necessary to satisfy the excited

utterance exception to the hearsay rule. We conclude the trial court did not abuse its

discretion by admitting Maria’s testimony about Gina’s statements immediately

before, during, and after Gina called 911 as excited utterances. We overrule

Hernandez’s first issue.

22 C. Admissibility of Outcry Testimony

In issue two, Hernandez argues that Mayra Domingue was not a proper outcry

witness because Gina was fifteen years old when Gina told her about the various

sexual assaults that occurred prior to 2014. The State does not dispute that Gina was

more than fourteen when Gina first told Mayra about these sexual assaults, but it

argues that the “outcry exception to hearsay applies to statements made by a victim

prior to [the victim’s] eighteenth birthday.” See Tex. Code Crim. Proc. Ann. art.

38.072 § 2(b) (allowing statements that qualify under article 38.072 as exceptions to

the general rule prohibiting hearsay).

The evidence shows that Gina was fifteen years old in June 2014 when she

told others about Hernandez’s alleged sexual misconduct. Thus, Gina made the out-

of-court statements that were the subject of Hernandez’s objections when she was

not yet eighteen. See Eldred v. State, 431 S.W.3d 177, 183 (Tex. App.—Texarkana

2014, pet. ref’d). We conclude that Hernandez’s argument suggesting that Gina’s

statements were not properly admissible based on the requirements in article 38.072

has no merit, and we overrule his second issue.

In issue three, Hernandez argues that Mayra was not a proper outcry witness

because Gina told Deputy Winford about the sexual assaults before Mayra

interviewed Gina about the assaults. We review a trial court’s decision to designate

23 a witness as an outcry witness using an abuse-of-discretion standard. Garcia v. State,

792 S.W.2d 88, 91-92 (Tex. Crim. App. 1990); Rosales v. State, 548 S.W.3d 796,

806 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d). An appeals court will

uphold the trial court’s designation of the witness if the decision is supported by the

evidence. Id. On appeal, an appellate court will not find that an abuse of discretion

occurred if the trial court’s decision over the designation of the outcry witness was

a decision that falls within the zone of reasonable disagreement. Id.

A proper outcry witness is the first adult to whom the child makes a statement

that “in some discernible manner describes the alleged offense.” Garcia, 792 S.W.2d

at 91. The statement the child makes, however, “must be more than words which

give a general allusion that something in the area of child abuse was going on.” Id.

According to the Court of Criminal Appeals, the statement the child gave to the

outcry witness is one in which the child gave the witness a description or some

details about the alleged offense. See id.

Here, the trial court conducted a hearing outside the presence of the jury to

determine whether Mayra was the person to whom Gina gave a detailed account

about the alleged sexual assaults. Mayra’s testimony from the hearing shows that

Gina told Mayra very specific details about the alleged assaults during her interview.

When Mayra testified in the hearing, outside the presence of the jury, Deputy

24 Winford had already testified before the jury about his ability to recall what Gina

told him when he responded to the report she made when she called 911. The deputy

testified that he could no longer recall the specifics about the conversation that he

had with Gina on the night she called 911. He provided little detail, explaining that

Gina did tell him that the sexual assaults started about ten years earlier, but he

provided no further details about any of those alleged assaults. Deputy Winford

testified he recalled Gina giving him some details “about things that [Hernandez]

allegedly had done to her[,]” 7 but he also testified that he did not ask Gina “for very

many details because she was a juvenile.” Deputy Winford did not relate any of the

details about “the things” he referred to, and he also testified at one point that he

could not recall what Gina told him.

On this record, the evidence shows that Gina told Deputy Winford that

Hernandez had done something to her while she was growing up and that it involved

sexual abuse. That said, the evidence does not show that Gina described the offenses

to Deputy Winford in any significant detail. For example, nothing in the record

shows that Gina told Deputy Winford the details about when, where, or how the

7 No one asked Deputy Winford to define what he was referring to when he mentioned the “things” Hernandez did to Gina. Thus, it is unclear whether all the “things” that Deputy Winford was referring to when he testified amounted to criminal acts.

25 sexual assaults occurred before Gina turned fourteen. We conclude the trial court did

not abuse its discretion by rejecting Hernandez’s argument that Deputy Winford, not

Mayra, should have been designated by the trial court as the appropriate outcry

witness for the trial.8 We overrule Hernandez’s third issue.

D. Objections to Photographs of Underwear and Lab Reports

In issue four, Hernandez raises three basic complaints about the trial court’s

rulings to admit five exhibits. Three of the exhibits are photographs of a pair of

Gina’s underwear, collected by the sexual assault nurse. The other two exhibits are

lab reports created by the crime lab, which summarize the tests and results on various

swabs tested by the crime lab for the presence of Hernandez’s DNA and for the

presence of any male, Y chromosomes.

First, we address Hernandez’s complaints about the ruling admitting the

photographs of Gina’s underwear. Hernandez argues that because the family had

laundered the underwear that is seen in the photos with other family laundry, the

8 In his brief, Hernandez suggests that the trial court could have concluded that Maria was an outcry witness. But the transcript of the trial reveals that Hernandez objected to Maria being the outcry witness because the statements Maria heard Gina make concerned the sexual assault that allegedly occurred just two days before Gina called 911. During the hearing, the State conceded that Maria was not a proper outcry witness, and the trial court admitted Maria’s testimony about the statements she heard Gina make that night under the excited utterance exception and not under the outcry exception to the hearsay rule. 26 underwear in the photos was not relevant evidence because nothing in the evidence

tied the underwear to the alleged incidents of sexual assault. In response, the State

argues that the discovery of Hernandez’s DNA on the inside of Gina’s underwear

was highly relevant to Hernandez’s guilt even if his DNA was found there because

the underwear had been laundered with other family laundry. According to the State,

the presence of Hernandez’s DNA on the underwear collected by the sexual assault

nurse is “highly probative to the fact issue of whether [Hernandez] sexually assaulted

[Gina].”

We need not decide if the photographs were inadmissible to resolve issue four.

Generally, appellate court review alleged errors in admitting evidence as non-

constitutional error. Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim. App. 2005).

Therefore, the appellate court must disregard the error (and affirm the verdict) unless

the error “‘has a substantial and injurious effect or influence in determining the jury’s

verdict.’” Id. (quoting Simpson v. State, 119 S.W.3d 262, 266 (Tex. Crim. App.

2003)). The error we have assumed occurred in Hernandez’s trial concerns the

photographs of Gina’s underwear, so the error, if it occurred, is treated as non-

constitutional error. Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007)

(analyzing whether defendant was harmed by erroneous admission of photographs

as non-constitutional error). Non-constitutional errors will not result in a verdict

27 being reversed if the record shows that the error did not influence the jury or had

only a slight affect. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001)

(citing Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)). “In

considering the potential to harm, the focus is not on whether the outcome of the

trial was proper despite the error, but whether the error had a substantial or injurious

effect or influence on the jury’s verdict.” Barshaw v. State, 342 S.W.3d 91, 93-94

(Tex. Crim. App. 2011).

Based on the strong evidence admitted in Hernandez’s case of his guilt, which

was independent from the photographs of the underwear, the trial court’s decision

to admit the three photographs amounts to at most harmless error. The evidence

supporting the jury’s findings includes Gina’s direct testimony about the sexual

assaults. Circumstantial evidence also supports the jury’s verdict, including a

biological test showing that the crime lab found male genetic material from

Hernandez’s familial line inside Gina’s sexual organ, evidence that Hernandez fled

to Mexico after Gina reported him to the police, and evidence showing that while in

Mexico, Hernandez contacted Gina requesting forgiveness for his conduct. Thus,

both direct and circumstantial evidence before the jury during Hernandez’s trial

allowed the jury to conclude that Hernandez was guilty, beyond reasonable doubt.

Given the State’s failure to directly tie the underwear collected by the sexual assault

28 nurse to any specific assault and the concession of the State’s expert that

Hernandez’s DNA on the underwear could be explained by the fact that the family

laundered clothes in the same washer, we harbor strong doubt that the jury would

have placed any weight on the photographs that are the subject of Hernandez’s

arguments in issue four. Thus, we conclude that any error that occurred in admitting

the three photographs was harmless. See Tex. R. App. P. 44.2(b).

Second, we address Hernandez’s complaint that the trial court erred by

admitting the two crime lab reports, which revealed the results the crime lab obtained

from testing the biological material collected during the State’s investigation of

Hernandez’s case. According to Hernandez, neither the DNA report, nor the Y-STR

report, corroborates Gina’s claim that any sexual assaults occurred. He also suggests

that the State had little need for the reports or testimony about them in proving its

case. When addressing the admissibility of the reports, we also address Hernandez’s

argument claiming that the trial court erred in allowing the forensic scientist who

prepared the reports, Kathleen McKinney, to explain the results and significance of

information in the reports to Hernandez’s case.

For convenience, we will first address Hernandez’s complaints about the

admissibility of the Y-STR report and about McKinney’s testimony of that report’s

29 significance in his trial. During the trial, McKinney testified that she signed the Y-

STR report, and she explained what a Y-STR report shows. She testified:

[Y-STR] actually just look[s] at the Y chromosome. That’s all it is looking [for]. It doesn’t look at any other part of the DNA. And so, it’s only looking at male DNA. But the only thing with Y-STR is that it is passed down in the male lines. So, the grandfather, father, son, they’re all going to have the same Y-STR profile. And this -- if you want to think back to the DNA steps, extraction, quant and detection, for this step, I actually just -- I went back to the extract that were already made for the DNA and I knew the quant. I already knew how much DNA was there, and so I just took it from the amplification on. I amplified it from a new kit. It’s a Yfiler kit that only looks at the male DNA. It’s just focusing on the Y chromosome part of the DNA. And I got the same type of pictorial representation, but it’s Y-STR profile instead of a DNA profile.

Then, the prosecutor asked McKinney about the relevance of Y-STR testing in cases

involving claims of sexual assault. She explained:

In a case like this, when you have a sexual assault, it is reasonable to see a lot of the victim’s DNA, because it is from her body or her clothing. And DNA if you have a lot of one contributor, can sometimes mask somebody else that is there. And so, in sexual assaults when there’s a female/male type of situation, we will tend to do Y-STRs if we need to go that far to see if we can -- if we can actually detect male DNA that may not be detected in a regular DNA, because it’s going to totally discount female DNA.

According to Hernandez, the Y-STR lab report and McKinney’s testimony about the

Y-STR testing lacked relevance to proving that he sexually assaulted Gina.

In our opinion, the trial court could properly find that the Y-STR report and

McKinney’s testimony about it were relevant to proving if Hernandez committed 30 the last sexual assault that occurred in mid-June 2014, just two days before Gina

called 911. The testimony shows that the Y-STR report was based on a swab linked

to biological material removed from the inside of Gina’s sexual organ just three days

after the June 2014 assault was alleged to have occurred. The test is based on a

polymerase chain reaction analysis. The analysis on the fluids extracted by the lab

from the swab associated with the inside of Gina’s sexual organ revealed a Y-STR

chromosome profile that, according to McKinney, tracked Hernandez’s Y-STR

profile. McKinney explained that a test tracking a known Y-STR profile made it

highly probable that a male descendant in that person’s family line contributed to

the profile revealed by the test. Thus, because the Y-STR profile tracked

Hernandez’s profile, and because Hernandez testified that he was not claiming that

Gina had sexual relations with any other male members of Hernandez’s family, 9 the

fit in the chromosome patterns was relevant evidence in proving that Hernandez and

Gina engaged in sexual relations several days before the Y-chromosome profile,

tracking his own, was found inside Gina’s sexual organ. We conclude the trial court

did not abuse its discretion by finding the Y-STR report and McKinney’s testimony

9 Hernandez testified during the guilt-innocence phase of his trial that he was not claiming that any other male family member had sexual intercourse with Gina.

31 about the Y-STR report to be relevant evidence in Hernandez’s trial. See Tex. R.

Evid. 401.10

Relying on Rule 403 of the Texas Rules of Evidence, Hernandez also argues

that the Y-STR lab report and McKinney’s testimony about it were unduly

prejudicial. Rule 403 provides: “The court may exclude relevant evidence if its

probative value is substantially outweighed by a danger of . . . unfair prejudice,

confusing the issues, misleading the jury, undue delay, or needlessly presenting

cumulative evidence.” When conducting a Rule 403 analysis, the trial court must

balance:

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

Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). While

evidence can be more prejudicial than probative, “there is a presumption that

10 Rule 401 provides that “[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Tex R. Evid. 401. Under Rule 402, relevant evidence is generally admissible unless another rule or statute provides otherwise. Tex. R. Evid. 402. 32 relevant evidence is more probative than prejudicial.” Santellan v. State, 939 S.W.2d

155, 169 (Tex. Crim. App. 1997).

In deciding whether the trial court abused its discretion by overruling

Hernandez’s claim that the YSR-report and McKinney’s testimony about it were not

unduly prejudicial, we must determine whether the evidence was unduly prejudicial

“‘in view of all relevant facts.’” Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim.

App. 2006) (quoting Santellan, 939 S.W.2d at 169). The fact that a Y-chromosome

profile that tracked Hernandez’s profile was found in Gina’s sexual organ was highly

relevant to the question of whether Hernandez and Gina had engaged in sexual

relations, claims that Hernandez denied. And the testimony about the Y-STR report

and its significance to Hernandez’s case was not long or time consuming when

viewed in the context of all the testimony in the trial. While this testing is not likely

familiar to ordinary jurors, the Y-STR report and McKinney’s testimony about it

was not so complicated that the testimony would have been confusing to an ordinary

jury. Considering both the relevant factors and all relevant facts in the record, we

conclude that the trial court had the discretion to rule that the probative value of the

Y-STR report and McKinney’s testimony outweighed the prejudicial value, if any,

of that same evidence. See Tex. R. Evid. 403.

33 In issue four, Hernandez also argues the trial court erred when it allowed the

DNA report and McKinney’s explanation of it to be admitted into evidence. Through

McKinney and the DNA report, the prosecutor exposed the jury to the DNA testing

that the crime lab performed on the underwear the sexual assault nurse had collected

from Gina during her sexual assault exam. McKinney concluded that based on the

DNA testing on the underwear, Hernandez could not be excluded as one of the

persons who contributed DNA to the biological mixture found on a swab linked to

Gina’s underwear. Hernandez objected to McKinney’s testimony about the results

of the DNA test on the underwear and the DNA report before the jury heard

McKinney testify about the DNA report and the significance of DNA testing in cases

involving sexual assaults. He claimed the evidence was more prejudicial than

probative on whether he committed the sexual assaults at issue in the trial. See Tex.

R. Evid. 403. On appeal, Hernandez advances the same arguments in claiming the

trial court abused its discretion by admitting evidence related the underwear Gina

removed during her sexual assault exam. According to Hernandez, the report and

testimony did

not tend to corroborate the allegation of [s]exual abuse…the jury would be irrationally yet indelibly impress[ed] because of the fact the DNA of [Hernandez’s] lineage was found in one of [Gina’s] panties. At that point, it would not matter to the jury if it’s because they washed the clothes in the same washer, [or] if that [the underwear tested] was not

34 the [underwear] that [Gina] was wearing the day she was allegedly sexually assaulted[.]

In our opinion, the jury likely did not rely on the DNA test report that

addressed the DNA in the underwear given that the Y-STR testing provides a strong

link under the circumstances of this case between Hernandez and Gina’s claim that

he sexually assaulted her. Moreover, there was also direct and circumstantial

evidence supporting the jury’s findings, which consisted of Gina’s testimony about

the assaults and Hernandez’s conduct after Gina reported him to police for sexually

assaulting her. As the factfinder, the jury had the right to credit Gina’s testimony and

to disbelieve Hernandez, as the jury’s verdict is supportable based on Gina’s

testimony alone. See Tex. Code Crim. Proc. Ann. art. 38.07 (West Supp. 2017)

(providing that a child’s testimony alone is enough to support a conviction for

aggravated sexual assault when the child, at the time of the offense, was seventeen

or younger).

Even if we assume the trial court abused its discretion by admitting the DNA

report and McKinney’s testimony about it, the remaining evidence in the record

supporting the jury’s findings causes us to conclude that the error, if any, in

admitting the evidence did not affect Hernandez’s substantial rights. Having

addressed all the arguments that Hernandez advances in his fourth issue, the issue is

overruled. 35 E. Leading Questions

In his fifth issue, Hernandez complains that the trial court allowed the

prosecutor to ask Gina several leading questions while questioning her during the

prosecutor’s direct exam. According to Hernandez, the State then compounded that

error by introducing a timeline on a chart, which the prosecutor prepared from Gina’s

testimony.

We review a trial court’s decision allowing the prosecutor to lead the State’s

witnesses for abuse of discretion. See Hernandez v. State, 643 S.W.2d 397, 400 (Tex.

Crim. App. 1982). The Rules of Evidence allow trial courts the right to control the

manner that the parties use in presenting evidence during a trial. See Tex. R. Evid.

611 (Mode and Order of Examining Witnesses and Presenting Evidence).

Ordinarily, trial courts will not allow a party to lead a witness during the witness’s

direct exam. See Tex. R. Evid. 611(c) (leading questions should not be used on

direct). That said, trial courts retain the right to allow an attorney, in the court’s

discretion, to use leading questions on direct. Id. (allowing leading questions “as

necessary to develop a witness’s testimony”); Wyatt v. State, 23 S.W.3d 18, 28 (Tex.

36 Crim. App. 2000) (noting that while the rules generally prohibit leading questions

“some leading questions are acceptable at the trial court’s discretion”).

The record shows that Gina testified on the second and third days of the trial.

On the third day of the trial, the prosecutor began several of his questions by asking

Gina whether she remembered stating the previous day that she had various sexual

encounters based on a stated age at that time. It appears likely that the prosecutor

chose to examine Gina using do-you-remember questions because given the lengthy

chronological history and similarity between many of the sexual acts, it might have

been difficult for the jury to put Gina’s testimony in the context of the time frame in

which she was claiming the various assaults occurred.

Rather than have Gina essentially repeat the same or similar testimony she

had just given on the second day of the trial, the prosecutor prefaced several

questions with a reference to the dates that Gina had mentioned during her testimony

on the second day of trial. The questions appear to have been intended to allow the

jury to more easily follow the chronology of the various sexual assaults that Gina

claimed had occurred over a ten-year period. The prosecutor also created a timeline

of events as Gina testified on the third day of the trial. In general, the timeline

summarizes Gina’s testimony about when, where, and what types of sexual assaults

she claimed Hernandez had perpetrated on her over a period of about ten years.

37 Based on Gina’s testimony, the chart ties various dates of the alleged assaults that

occurred over a period of ten years to the locations where the assaults allegedly

occurred and to the types of sexual acts that occurred in those locations.

When the prosecutor offered the chart into evidence, Hernandez’s counsel

objected to the exhibit claiming the prosecutor created the chart based on Gina’s

answers to the prosecutor’s leading questions. In response, the State argues that the

manner the prosecutor employed when questioning Gina did not suggest what her

answer should be. For that reason, the State contends that the questions at issue were

not leading.

The trial court overruled Hernandez’s objection to the exhibit. In response to

the ruling, Hernandez’s counsel asked for and the trial court granted his request for

a “running objection” to questions about whether Gina remembered specific

testimony from the prior day of the trial. In ruling on Hernandez’s request, the trial

court told Hernandez’s counsel that, as phrased, the prosecutor’s questions did not

suggest how Gina should answer the questions and instead asked Gina whether she

could remember “something she just testified to [yesterday].”

Generally, the rules of evidence allow trial courts to exercise discretion over

the method an attorney is using when interrogating witnesses. Tex. R. Evid. 611(a).

Given the context in which the do-you-remember questions occurred, reasonable

38 people might disagree about whether the questions suggested the answer.11 Given

the discretion afforded trial court’s in controlling the manner that a party presents its

evidence, the trial court’s decision to overrule Hernandez’s objections to Gina’s

testimony and its decision to admit the exhibit were discretionary calls, and both fell

inside the zone of reasonable disagreement. See Wyatt, 23 S.W.3d at 28. We overrule

the arguments presented in issue five.

F. Impeachment Evidence

In issue six, Hernandez argues the trial court erred by allowing the State to

impeach him by asking him, in cross-examination, whether he knew that “while [he]

lived with [Gina] that she was suicidal because of what you did to her?”, that his son

became aggressive toward Gina after Hernandez left the house, and whether

Hernandez knew that Gina had hallucinated, which had caused her to relive the

sexual assaults.

11 Hernandez has not argued that the exhibit summarizing Gina’s testimony was not a relevant or accurate summary or claimed that the prejudicial value of the exhibit outweighed the exhibit’s relevance. See generally Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim. App. 2010) (noting that trial court errors in admitting evidence are not reversible if the same evidence is admitted elsewhere in the trial); Wheatfall v. State, 882 S.W.2d 829, 839-40 (Tex. Crim. App. 1994) (concluding that error occurred when the trial court admitted a five-page handwritten summary of the defendant’s violent criminal history, but the error was harmless because the underlying evidence on which the summary was based was also admitted in the trial). 39 The State contends that Hernandez opened the door to the impeachment by

testifying in the trial that he was concerned about Gina’s well-being, was involved

in her life and activities, and that he actively monitored and disciplined his children.

During the trial, Hernandez’s counsel objected when the State tried to impeach

Hernandez with questions designed to allow the jury to determine how well he

actually knew and cared for Gina. Hernandez also claimed that the prosecutor’s

questions about these matters were speculative, argumentative, and assumed facts

not in evidence. When the trial court overruled Hernandez’s objections, Hernandez

answered: “I hadn’t done anything to her. What did I do?”

On appeal, the State argues that the questions were proper because Hernandez

opened the door by representing to the jury that he is a good father who supports his

family and disciplines his children. According to the State, because Hernandez

presented evidence designed to give the jury a false impression about his parenting

abilities, it was entitled to respond by asking him whether he knew about several

matters that a jury could reasonably have expected a caring parent to know.

In a criminal trial, “if the defendant offers evidence of his good character, the

prosecution can introduce its own character evidence to rebut the implications of the

defendant’s character evidence.” Harrison v. State, 241 S.W.3d 23, 27 (Tex. Crim.

App. 2007); see Tex. R. Evid. 404(a)(2)(A) (in a criminal case, if the defendant

40 offers evidence pertinent to a defendant’s trait, the prosecutor may offer evidence to

rebut it). Once a defendant opens the door to evidence pertinent to his traits, trial

courts may permit the State to introduce testimony, including cross-examination,

designed to show specific instances of conduct that would impeach the defendant’s

testimony about the trait at issue. See Wilson v. State, 71 S.W.3d 346, 350 (Tex.

Crim. App. 2002). Therefore, we agree with the State’s argument that by portraying

himself as a caring and loving parent, Hernandez opened the door to questions like

those that are at issue here, if the questions were asked in good faith. While

Hernandez argued at trial that no good faith basis existed for the questions, he did

not advance that argument in his appeal, nor does the record show that he asked the

trial court to require the prosecutor to state the factual basis for the questions that he

is complaining about in this issue. Because a caring father’s lack of actual knowledge

about his child’s well-being opened the door to impeachment on a variety of specific

matters that would be relevant to the impression Hernandez tried to create in the

jury’s mind, we hold the trial court did not abuse its discretion by allowing the

questions Hernandez has challenged in issue six. See generally Tex. R. Evid.

404(a)(2)(A).

Hernandez also argues that the did-you-know questions were impermissible

because the State failed to lay a proper predicate before asking the questions phrased

41 in the did-you-know form. Yet the proof of a predicate fact is not required when the

door is opened to a party’s right to ask did-you-know types of questions, as the

purpose of the questions is to impeach the witness’s own testimony. See generally

Tex. R. Evid. 608(b) (unless the evidence is to prove that a person has been

previously convicted of a crime, a party may not offer extrinsic evidence to rebut the

witness’s answer to a did-you-know type of question when the question’s purpose

was to impeach the witness’s testimony about his character).

Hernandez also suggests that allowing the prosecutor to impeach him with

did-you-know questions violated his right to confront whomever served as the

source of the prosecutor’s information for the questions. Hernandez, however, failed

to preserve this argument for review on appeal, since he made no Confrontation

Clause objections to the first four of the five questions at issue. Here, the record

shows that Hernandez answered four questions in response to did-you-know types

of questions before Hernandez asserted a Confrontation Clause claim. Because his

Confrontation Clause objection was untimely, we do not reach it in resolving issue

six. See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (concluding

that because the defendant failed properly to preserve his Confrontation Clause

claim, he forfeited his right to appellate review on that claim); see also Tex. R. App.

P. 33.1 (requiring a party to preserve error for appellate review by showing that he

42 made a timely request, objection, or motion). Because the arguments Hernandez

raises in issue six either lack merit or were not properly preserved for appellate

review, issue six is overruled.

G. Detective Rizk’s testimony that Gina appeared to be reliable when she told Mayra about the assaults

In issue seven, Hernandez argues the trial court abused its discretion by

denying his motion seeking a mistrial after the prosecutor asked Detective Rizk

about the impression he had of Gina based on his observations of her during her

interview at Children’s Safe Harbor. In response to the question, Detective Rizk

responded: “I found her to be very believable[.]” At that point, Hernandez’s counsel

interrupted, and objected to Detective Rizk testifying about Gina’s credibility. The

trial court sustained the objection and instructed the jury to disregard the detective’s

answer. When Hernandez’s counsel followed that ruling up with a request for a

mistrial, the trial court denied the request.

We review a trial court’s decision to deny a motion for mistrial using an abuse-

of-discretion standard. See Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App.

2009). Mistrials are rare, as “[a] mistrial is an appropriate remedy in ‘extreme

circumstances’ for a narrow class of highly prejudicial and incurable errors.” Id.;

(quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)). “Whether

43 an error requires a mistrial must be determined by the particular facts of the case.”

Id.

Generally, an attorney’s asking a witness “an improper question will seldom

call for a mistrial, because, in most cases, any harm can be cured by an instruction

to disregard.” Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999) (citing

Hernandez v. State, 805 S.W.2d 409, 414 (Tex. Crim. App. 1990)). To obtain a

mistrial due to an allegedly improper question, the party complaining about the

question must demonstrate in his appeal that he was prejudiced, and that the

prejudice is of “such character as to suggest the impossibility of withdrawing the

impression produced on the minds of the jurors.” Id. In Hernandez’s case, the record

shows that the trial court instructed the jury to disregard the detective’s answer.

The Court of Criminal Appeals has identified three factors in evaluating

whether a mistrial is required. Archie v. State, 340 S.W.3d 734, 739 (Tex. Crim.

App. 2011). The factors considered concern (1) the severity of the misconduct, (2)

the measures the trial court adopted to cure the misconduct, and (3) the certainty of

conviction without the misconduct. Id. The question posed to Detective Rizk does

not appear to be one the prosecutor intentionally designed to elicit a response about

the victim’s credibility. Instead, the question, as it was posed, was open-ended, and

the trial court as well as the prosecutor likely expected the detective to answer by

44 stating that Gina appeared to be calm, nervous, or frightened while being interviewed

at Children’s Safe Harbor. The trial court apparently did not view the witness’s

response as the one that was expected, and without more, the fact the prosecutor

asked an open-ended question is not evidence showing that prosecutorial misconduct

occurred.

The record also fails to establish that the detective’s response was incurably

prejudicial. When Hernandez objected to the detective’s response, the trial court

quickly instructed the jury to disregard the detective’s answer. We find nothing in

the record to suggest that the jury disregarded the trial court’s instruction, so we must

presume the instruction was followed. See Gamboa v. State, 296 S.W.3d 574, 580

(Tex. Crim. App. 2009) (relying on the presumption that the jury followed the

judge’s instructions).

Finally, the record establishes that the jury would have convicted Hernandez

regardless of Detective Rizk’s testimony that he thought Gina gave a believable

interview during her forensic exam at Children’s Safe Harbor. Gina testified during

Hernandez’s trial, and we have no doubt that the jury formed its own impressions

about whether she was a believable witness based on the testimony she gave during

the trial. Moreover, the jury’s verdict in this case does not rest solely on Gina’s

credibility, as the Y-STR report shows that the crime lab found a Y-chromosome

45 profile that tracked Hernandez’s profile in Gina’s sexual organ. We also note that

there was strong circumstantial evidence supporting the jury’s findings of guilt, as

Hernandez fled twice from the authorities and apologized to Gina for what the jury

could reasonably have viewed as sexually criminal misconduct.

We conclude the jury either disregarded Detective Rizk’s comment about

Gina being credible or if not, the answer he provided was not harmful. We hold the

trial court did not abuse its discretion by denying Hernandez’s motion for mistrial.

Issue seven is overruled.

III. Cumulative Error and Excessive Sentence

A. Cumulative Error

In issue eight, Hernandez argues that the various errors he claims the trial

court committed during his trial resulted in an unfair trial. See Tex. R. App. P.

44.2(b). We disagree with Hernandez’s claim that he received an unfair trial based

on the evidentiary errors we have assumed occurred in his trial. We have already

explained why those errors had either no or but slight effect on the jury’s decisions

finding Hernandez guilty on the elements of the assaults, as those crimes are alleged

in the indictments relevant to his trial. See Johnson v. State, 967 S.W.2d 410, 417

(Tex. Crim. App. 1998) (citing King v. State, 953 S.W.2d 266 (Tex. Crim. App.

1997)). We must disregard the errors that we have assumed, but not decided,

46 occurred based on our conclusion that the errors we have identified had no effect on

Hernandez’s substantial rights. See Tex. R. App. P. 44.2(b); Johnson, 967 S.W.2d at

417. Issue eight is overruled.

B. Length of Sentence

In issue twelve, Hernandez argues that a life sentence for the crime of

continuous sexual assault of a child constitutes a cruel and unusual punishment,

which he claims violates the Eighth and Fourteenth Amendments to the United

States Constitution. See U.S. CONST. amend. VIII; amend. XIV. We conclude,

however, that Hernandez waived his right to complain about the alleged

unconstitutionality of his sentence because he failed to raise these claims at trial.

To preserve an error for review on appeal, the defendant must present both a

timely objection and secure a ruling from the trial court about the complaint that he

desires to pursue in an appeal. See Tex. R. App. P. 33.1(a). Stated another way, “[t]he

point of error on appeal must comport with the objection made at trial.” Clark v.

State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (citing Thomas v. State, 723

S.W.2d 696, 700 (Tex. Crim. App. 1986)).

The offense for the continuous sexual abuse of a child carries a potential life

sentence. Tex. Penal Code Ann. § 21.02(h) (West Supp. 2017). Thus, the sentence

Hernandez received in the punishment hearing for the crime of continuous sexual

47 abuse is in the range the Legislature authorized for the crime the jury found

Hernandez committed. Id. The record from the trial court shows that Hernandez

never objected to his sentence on any grounds, much less those that he argues in his

brief. Tex. R. App. P. 33.1. Moreover, even claims alleging constitutional violations

are generally subject to the rules that apply to preserving error for an appeal. Garza

v. State, 435 S.W.3d 258, 260-61 (Tex. Crim. App. 2014) (explaining that “all

errors—even constitutional errors—may be forfeited on appeal if an appellant failed

to object at trial”); Diamond v. State, 419 S.W.3d 435, 440 (Tex. App.—Beaumont

2012, no pet.) (explaining that the defendant’s failure to object to a sentence claiming

the sentence was cruel and unusual when the defendant was in the trial court resulted

in a waiver of that argument upon appeal).

The Legislature authorized juries to impose the sentence at issue, life in

prison, upon being found guilty of the crime of continuously sexually assaulting a

child. Tex. Penal Code Ann. § 21.02(h). We hold that Hernandez forfeited his right

to complain that his sentence is cruel and unusual because he failed to object on that

basis when he was sentenced. Tex. R. App. P. 33.1. Therefore, we overrule

Hernandez’s twelfth issue.

48 Finally, we note that a clerical error exists in the judgment in trial court Cause

Number 16-09-10158-CR. 12 Neither party pointed this error out in their briefs. The

error in this case is an error in one of the recitals in the judgment that reflects that

the trial court assessed Hernandez’s ten-year sentence, but the record reveals that the

jury decided to sentence Hernandez to prison for ten years.

We have the authority to reform judgments to make the record speak the truth.

See Tex. R. App. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App.

1992). We may act sua sponte to reform an incorrect judgment, and we may have a

duty to do so. See French, 830 S.W.2d at 609; Asberry v. State, 813 S.W.2d 526,

530 (Tex. App.—Dallas 1991, pet. ref’d). To correct the clerical error that we

identified in trial court Cause Number 16-09-10158-CR, we reform the judgment by

deleting the language stating that the trial court assessed punishment to make it state

that the punishment was assessed by the jury in that cause.

12 The judgment of conviction in Cause Number 16-09-10164-CR, Count 1, and in Cause Number 16-09-10164-CR, Count 2, states that the jury assessed Hernandez’s punishment in those cases. In contrast, the judgment in Cause Number 16-09-10158-CR, which assesses a ten-year sentence, states the trial court assessed the punishment in that case. The record shows, however, that the jury assessed all three of Hernandez’s punishments and that the trial court pronounced those punishments in the punishment phase of his trial.

49 Conclusion

For the reasons explained above, we affirm the trial court’s judgments.

AFFIRMED.

______________________________ HOLLIS HORTON Justice

Submitted on March 13, 2018 Opinion Delivered October 10, 2018 Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.