Opinion
09-23-00316-CR
11-06-2024
CONNOR CHARLES ALLEN, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Submitted on August 9, 2024
On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 20-09-10994-CR
Before Johnson, Wright and Chambers, JJ.
MEMORANDUM OPINION
LEANNE JOHNSON Justice
A grand jury indicted Connor Charles Allen ("Appellant" or "Connor") for the offense of aggravated sexual assault of a child (his half-sister "Kasey"), a first-degree felony. See Tex. Penal Code Ann. § 22.021(a)(1)(B). The indictment alleged that Connor
We use pseudonyms to refer to the alleged victim, family members, and others. 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").
on or about June 01, 2016, . . . intentionally or knowingly cause[d] [Connor]'s sexual organ to contact or penetrate the mouth of [Kasey], a child who was then and there younger than 14 years of age[.]
A jury found Connor guilty of the offense as charged. After the punishment phase of the trial, the jury assessed punishment at seventy-five years of confinement. Connor timely appealed. In three issues, Connor appeals his conviction and challenges the admission of extraneous evidence, the omission of a jury charge instruction, and the admission of demonstrative evidence. We affirm the judgment of conviction.
Evidence at Guilt-Innocence Phase of the Trial
Testimony of Mary Phillips
Mary Phillips, a forensic interviewer at Children's Safe Harbor in Conroe, testified that she conducted forensic interviews with Kasey on April 2, 2020, and May 5, 2023. According to Phillips, the initial reason for Kasey's interview in 2020 was because Kasey was referred to Children's Safe Harbor by law enforcement for an online solicitation case not involving Connor. Phillips recalled that Kasey was twelve years old at the first forensic interview, that she built a rapport with Kasey, and that she let Kasey know there were video cameras in the room. Phillips testified that she and Kasey talked about touching of body parts and Phillips asked "alternative hypotheses questions[]" if "something like that had happened to her by someone else[,]" to which Kasey replied, "yes." Kasey then told Phillips that the summer before Kasey was in third grade her brother, Connor Allen, had touched "both her boobs and her vagina[,]" and during that same summer he made her "suck his penis[]" on two occasions.
Phillips testified that she asked Kasey about the most recent time it had happened because "[t]he last time is typically something they recall in more detail[]" because it is more recent. Kasey told Phillips that the last time it happened was in the summer before third grade, her parents had left for work, and she and Connor were home alone. According to Kasey, Kasey took some food back to her room, and Connor came into her room and wanted to "hang out" with her but she wanted to take a nap; and he kept telling her "No" to her taking a nap and he wanted to hang out. She got up to change her clothes, but he refused to leave the room, so she went into her closet to change but he opened the closet door when her shirt was off and refused to close the door. She grabbed her clothes and ran to her parents' bedroom and locked the door. Kasey said that while she was changing, Connor banged on the door and dented it while telling her to let him in, and at one point he put a knife under the door. After she changed clothes, Connor told her that there was something he needed her to do. Once outside, he pushed her to the ground, grabbed her by the arm, then dragged her inside his room, locked the door, put things against the door to prevent her from leaving, pulled his jeans and tank top off, held Kasey by the throat, pushed her to the ground and "made her suck his penis[]" which made her "mouth feel[] gross." Kasey stated she had red marks on her throat after that event and she had difficulty swallowing for a few days. Kasey described the items in Connor's room, what she and Connor were wearing, and what Connor's legs and stomach looked like during the assault. Kasey said that she tried to make Connor stop by kicking him and biting him and then when she was able to push him away, she threw items in the room at him. Kasey reported that when she threw an item at him, he fell back, which allowed her to escape the room.
Phillips testified that she asked Kasey about the first time Connor sexually assaulted her, and Kasey stated it had also happened in Connor's room the summer before she was in third grade. Kasey told her that Kasey and Connor were jumping on Connor's bed and Connor told her that if she would do "something that was fun[]" that they could continue jumping on the bed. Kasey reported that she asked whether it was something "good or bad[,]" Connor answered "good" and pushed her onto her knees, pulled his pants down, and "made her suck his penis[.]" Kasey stated that it stopped when she bit Connor. According to Phillips, Kasey told her that during both the first and second time, Connor threatened Kasey with a knife.
Phillips testified that "barriers are different things for children that they struggle to overcome, particularly when talking about abuse or neglect[,]" like fear of getting in trouble, fear of the investigation, fear of being harmed. Some of the "barriers" to Kasey's disclosure of the assaults in this case could be fear of being harmed and that the perpetrator is a family member. Phillips explained that telling a child that a sexual act is good or fun and having to do a sexual act in exchange for something can be examples of grooming. According to Phillips, based on her training and experience she has seen threats as reasons why children do not disclose abuse. Phillips testified that during the first forensic interview with Kasey, Kasey asked whether there would be an investigation of her brother because she was scared that he would come find her and be upset about her disclosing what he did.
Phillips recalled that in Kasey's second forensic interview Kasey was more "tentative [with a] closed-off demeanor." According to Phillips, Kasey looked down a lot, answered "I don't know" often, and expressed that she did not want to continue to talk about the subjects they were talking about because Connor had threatened to kill her if she talked about it, and she was not sure that her parents would believe her. Kasey reported during the second interview that the last time she saw Connor was in July 2018 at the pool with family. Kasey reported that she splashed Connor, and he held her under water until family realized that Kasey was struggling and told Connor to let her go. According to Kasey, she had trouble breathing after the incident and her family and friends told her that her face was purple.
Kasey told her that Connor moved out of the house a few months into her third-grade school year, was gone for several months, came back for a few weeks and then was kicked out of the house by Kasey's mother. Phillips recalled that during the interviews and the timeline of events reported by Kasey, Kasey did not provide the year the assaults occurred. Phillips testified that it is common for children not to include the year because of "age, developmental understanding, [or because] multiple incidents have occurred."
Testimony of Heather Simon
Heather Simon testified that in 2020 she was a forensic nurse and sexual assault nurse examiner (SANE) with Texas Forensic Nurse Examiners. According to Simon, she conducted a sexual assault exam of Kasey at Children's Safe Harbor on May 8, 2020. The records from the medical exam were admitted into evidence and published to the jury. Simon testified that the exam was "nonacute," meaning no physical evidence was collected because the incident would have taken place outside of a 120-hour window. According to Simon, Kasey reported that two or three years ago her brother "made [her] do things[]" and "touched [her] in places." When Simon asked Kasey to elaborate, Kasey stated that Connor had grabbed her by the throat and tried to put his penis in her mouth on two occasions and he touched her and pointed to her chest and genital area. Simon testified that Kasey reported that the assaults occurred during the day when her parents were at work. When Simon asked the "body part to body part questions[,]" Kasey answered "Yes" to "[p]enis to mouth[]" and "No" to "penis to female genitalia[.]" Kasey also reported that Connor had cut her with a knife before and had touched her private parts with his hand.
Simon testified that she took photographs of Kasey's right wrist where Kasey said Connor cut her with a knife and there was a scar that was a "5 centimeter linear hypopigmentation[.]" According to Kasey, when she was about seven to ten years old, Connor strangled her more than three times, and he would use his hands on her throat to apply pressure to her neck or put a pillow over her throat to apply pressure to her face. Kasey told Simon that during the strangulation it looked like Connor was about to cry and that he did not want to do it, but he kept doing it and she thought that he was going to kill her, but he stopped when she kicked him. Kasey recalled she experienced loss of consciousness during the strangulations and that afterwards she experienced headaches, dizziness, red face, and raspy voice. Simon also noted that Kasey reported self-harm abrasions on her left arm down by her wrist.
Simon asked how Kasey's mother found out about the sexual assaults and Kasey said that she was at Safe Harbor and was supposed to be talking about the "Snapchat ordeal[]" but when the interviewer asked if Kasey had been sexually assaulted, she told the interviewer and her mother that Connor had sexually assaulted her. According to Simon, Kasey described Connor as abusive, and he told her that he would kill her if she told anyone. Kasey told Simon she believed Connor and had not told anyone before. Simon recalled that Kasey said she should have told someone when it happened and that she was worried that if he did come back that he would try to hurt her and her mother.
Testimony of Deputy Alexander Randall
Alexander Randall, a deputy with the Montgomery County Sheriff's Office, testified that at the time of the case he was a deputy with the Montgomery County Precinct 3 Constable's Office in The Woodlands. According to Deputy Randall, at the time of the case, he was assigned as a detective as part of the Special Victim's Unit and officed out of the same building as Children's Safe Harbor. Deputy Randall testified that he was assigned the case and provided little information. Deputy Randall testified that Maria, Kasey's mother, reported that Kasey had received an electronic communication from an unknown male that was communicating in a sexual manner with her, and Randall investigated the matter for online solicitation of a minor. According to Deputy Randall, he scheduled Kasey for a forensic interview because law enforcement does not interview children for those purposes. Deputy Randall recalled that the interview was delayed because of COVID and Children's Safe Harbor suspended operations, but he was able to observe the interview on April 2, 2020, from another room. According to Deputy Randall, Mary Phillips interviewed Kasey and during the interview Kasey made an outcry that was not related to the online solicitation investigation. Deputy Randall recalled that Kasey reported multiple sex acts were committed by her older half-brother or stepbrother, Connor Allen. Deputy Randall testified that Kasey reported that Connor touched her breast and intimate parts of her body and reported there was oral penetration by Connor's penis in her mouth.
Deputy Randall recalled that he shared with Maria a summary of the information that Kasey had disclosed. Randall testified that Maria appeared surprised and concerned. Deputy Randall interviewed Kasey's parents at their home, took photographs of the home to corroborate information, and helped coordinate a sexual assault nurse examination for Kasey. The SANE examination was also delayed because of COVID but it was completed on May 8, 2020. Photographs Deputy Randall took of the home were admitted into evidence and published to the jury. One of the pictures showed a bin of knives in one of the bedrooms. Randall confirmed it was his understanding these were the knives that Connor had used with Kasey. Deputy Randall also photographed a scar on Kasey's right forearm wrist area from an injury that Kasey reported. Deputy Randall spoke with Connor on the telephone briefly, but Connor declined an interview.
According to Deputy Randall's investigation and based on the school records he compiled: Connor was born on December 28, 1998; Kasey was born on September 6, 2007; Kasey would have finished second grade at age 8 and started third grade at age 8; Connor repeated tenth grade, so he was in tenth grade during the 2015-2016 school year and the 2016-2017 school year; and Connor withdrew from school in October of 2016. Deputy Randall confirmed that Connor turned seventeen in December of 2015, and he was a few months shy of his eighteenth birthday in the summer of 2016, which was the summer before Kasey was in third grade. Deputy Randall testified that he estimated a date for the alleged offenses was approximately June 1, 2016, "as that's semi in the summertime[.]"
Kasey's Testimony
Sixteen-year-old Kasey identified Connor as the defendant and testified that she did not want to be at court but was testifying because she hoped no other children would be around him. Kasey testified that Connor's mother is her father's exgirlfriend, Bonnie, and that Kasey's mother, Maria, is Connor's stepmother. She testified that she had a normal brother-sister relationship with Connor until she was about five years old, but after that the relationship changed. According to Kasey, when Connor would get upset with Kasey's mother, he would leave and go to his mother's house. Kasey testified that Connor went back to his mother's house pretty frequently and would stay with her for different amounts of time. She remembered her parents leaving her at home with Connor when they would run a quick errand, but they would only be gone for about forty-five minutes. Kasey testified that in elementary school she attended daycare after school and in the summer, and she quit attending daycare in the fifth or sixth grade.
Kasey testified that the last time she saw Connor before trial was at her house on July 4, 2018. Kasey recalled that on the weekend prior, Connor and his girlfriend were at her house, and people were over and playing in the backyard. Kasey recalled that she jumped in the pool and splashed Connor; he said that if she splashed him again that he would drown her; she thought it was a joke and she put water on him; and then he jumped in the pool and put her head under water. Kasey testified that he had his hands on her shoulders, and he pushed her head under and lifted her head up for a second and pushed it right back down. Kasey recalled that later Connor and her father got into an argument and Connor then left.
Kasey testified that when she was younger than six, she and Connor were outside, and he wanted something, but she did not go get it for him. According to Kasey, Connor became angry and got a kitchen knife and cut her right arm. She testified that she was scared to tell anyone at the time and that she still has the scar from the cut. Kasey testified that later he hurt her vagina with his penis, but that she did not tell the interviewer in the first forensic interview about that because she did not tell the interviewer everything and she was unsure about what was going to happen. She explained she remembers the span of time of something sexual happening between her and Connor as occurring from second grade until third grade, and that she was able to determine this time frame from remembering changing circumstances surrounding certain friends and teachers during those grades and that she remembered that the sexual contact was happening at that same time. Kasey recalled that anytime something sexual happened Connor would tell her that if she told her parents about it, he would kill her. She testified that she believed his threats.
Kasey recalled the summer before third grade when she and Connor were home in her room, her parents were not home, she asked him "to hangout" with her, and he told her they could jump on her bed. According to Kasey, he told her that he would only hangout if she would put her mouth to his penis. She testified that she felt uncomfortable but did not know if it was "good or bad" because she was young, so she asked him was that "good or bad." He did not answer her and pushed her to her knees by using his hands to push down on her shoulders and he made her put her mouth on his penis. According to Kasey, Connor's pants were down to his ankles; they heard her parents walk in the house; and Connor "stopped and said act normal." She testified that he made her put her mouth on his penis "a lot[.]" Kasey explained that in the forensic interview she lied and only said it happened twice because she "didn't want what happened to [her] to be out there[.]"
Kasey testified that another time that Connor put her mouth on his penis was also in the summer before she was in third grade, when she was eight years old, and he was seventeen. According to Kasey, she and Connor were in his room, the door was closed, and a piece of furniture was in front of the door and blocking the doorknob. Kasey recalled that they got into an argument because he had asked her to put her mouth on his penis again and she told him no, he grabbed her, she tried to move the furniture away from the door to get out of the bedroom, and when she could not, she ran to the corner and threw a neon sign in his room at him. At some point during the incident, he pulled his pants down and pushed his penis inside of her mouth, she bit him, he threw her off him, and he pulled up his pants. He walked towards her, so she grabbed a sign off the wall that had a deer on it and threw it at him. She could not recall how she got out of the room. For both events, Kasey did not remember where her parents were, but she recalled they were not home. Kasey also remembered both incidents were when she was old enough to use a microwave and she knew that she was old enough to use a microwave at eight years old. According to Kasey, she lied in her first forensic interview when she said that Connor's penis did not go in her mouth because she "was uncomfortable with people around [her] knowing" and she was "scared that people were going to look at [her] different because of something that happened that is no longer happening anymore." Kasey testified that she did not remember telling the forensic interviewer that Connor strangled her, but that if she told the interviewer that it happened, then it did. Kasey testified that she trusted her parents but did not tell them about the sexual assaults because she was scared and young, and she wished she would have told them so it would have stopped sooner.
Kasey remembered a time between the "jumping-on-the-bed time" and the "sign-throwing time" when she and Connor were at a park and Connor took her to the trees, made her lean her back against a tree and tied her arms around the tree with a rope or scarf, and then he "[took] his anger out on [her]" and yelled at her and hit her with a stick. Kasey testified that she remembered that on one occasion he rubbed her chest with his hands, on another occasion he touched her vagina, and that those occasions happened between the "jumping on the bed" incident and when he left in July 2018. Kasey recalled that when he touched her chest, they were either in her room or his room and that her shirt was off. Kasey did not recall Connor putting a pillow over her face nor did she recall telling the SANE about that. Kasey did not remember talking to the SANE about Connor applying pressure to her neck. Kasey recalled that Connor played aggressively with her and that she would feel scared when that happened. According to Kasey, her memory would have been better when she was talking to the SANE than it was at trial because the events she was talking about were closer in time to the SANE examination.
Kasey testified that she feels uncomfortable, gross, and upset when talking about the details of what Connor did to her. She explained that she tried not to think about it, and anytime it "pops in [her] mind, [she] push[es] it out as best as [she] can." According to Kasey, it has been easier to deal with these thoughts since she has reported what happened. Kasey had a second interview with Phillips in 2023, and she told her everything in the second interview because she felt more comfortable with her.
Maria's Testimony
Maria, Kasey's mother, and Connor's stepmother, testified that she met her husband, Kirk, in 2004, when Connor, Kirk's son, was five years old. According to Maria, she and Kirk had their daughter Kasey in September of 2007, and Kasey and Connor are about nine years apart. When Connor was around thirteen, he moved into their house, and she thought she and Connor had a good relationship. According to Maria, Connor and Kasey each had their own bedroom, and as an infant Kasey was in one bedroom, then at seven or eight years old, Kasey moved into a different bedroom, and in 2020, Kasey moved into the third bedroom, which was Connor's old bedroom.
Maria agreed that when Kasey was six years old at the second half of her kindergarten year, Connor would have been fifteen years old and in the second semester of his freshman year in high school, and at the beginning of Connor's sophomore year he would have been fifteen years old, and Kasey would have been in first grade. Maria recalled that during Connor's teenage years she took on the role of disciplinarian and when conflicts arose between them, Connor would go stay with his mother or grandmother temporarily. When Connor started driving and working in high school, during the day he would be gone "running the roads" but would be home at night. Maria agreed that in December of 2014, Connor was in tenth grade, was living at their home, and was driving himself to school. Maria testified that around that time she learned that although Connor was leaving in the morning for school and coming home from work, he was not attending school. Maria recalled that Connor withdrew from high school in October 2016 when he was two months shy of his eighteenth birthday.
According to Maria, when Kasey was about seven or eight years old, and she got on the wrong school bus and was dropped off at home instead of daycare, Maria and Kirk got Kasey a cell phone as a safeguard so that she could call them. They did not have a landline. Maria recalled that in the summer of 2016, Connor would have been seventeen years old and driving his truck and leaving the house frequently and sometimes spending the night with his mother or grandmother. During that summer, the summer before Kasey was in third grade, Maria was working for a freightforwarding logistic company and worked from 8 a.m. to 5 p.m. with a half-hour commute. According to Maria, she would leave about 7:30 a.m. and drop Kasey off at daycare on the way to work and then pick Kasey up after work and be home around 6 p.m. Maria testified that Kirk worked during the week, too, and would get home around 3 or 4 p.m. Maria recalled that they often had guests over. Maria testified that she might have left Kasey at home with Connor for around forty-five minutes to an hour if she had to run an errand, but she did not recall leaving Kasey with him for two or three hours. Maria recalled that Kasey did well in second grade but during her third-grade year she had behavioral issues at school, and that at the beginning of third grade in September 2016, Kasey's school called Maria about Kasey not following instructions and arguing with adults. Maria testified that Kasey's third grade year was the first time Maria was called for a parent-teacher conference because of Kasey's behavior, and Maria had started to notice Kasey having a difficult time with authority at home, too.
Maria testified that in June of 2017, the summer before Kasey started fourth grade, Kasey no longer went to daycare after school because Maria stopped working and was at home. Maria testified that Connor started working in the oil field in West Texas in late 2017, but he was still in town at times until he moved out in July of 2018. According to Maria, Connor moved out after a pool party at their house with family and friends the weekend before July 4th in 2018. Kasey and Connor were playing in the pool, and he got angry. Maria recalled that Connor was dunking Kasey and "after a couple of times and [Kasey] came up out of the water, [Maria] saw [Kasey's] face[]" and Maria told Connor to stop. Connor stopped, got angry, "it just escalated and went downhill from there," and Connor "[h]ad a few words[]" and left with his girlfriend. Maria testified that Connor came over the following weekend and visited with everyone else but did not speak to Maria or Kasey. According to Maria, that was the last time she saw him before the trial.
Maria recalled that when Kasey was in fifth grade Kasey was having behavioral issues and Maria talked to Ms. Bodin, the school counselor, who provided Maria with a list of therapists. Kasey attended counseling in fifth and sixth grades, but her behavioral issues were not improving. According to Maria, Kasey has had therapy with a therapist named "Jennifer" and a therapist named "Kristen."
Maria remembered that in March of 2020, she found out that Kasey had a social media account that she was not supposed to have, and she saw someone sending Kasey sexual messages. Maria took Kasey's phone and started messaging the person and found out that he was a twenty-three-year-old man. Maria wanted to press charges against the man, and she took Kasey to meet with a detective to be interviewed about the incident. After the interview, the detective told Maria in private that during the interview Kasey disclosed that Connor had sexually assaulted her. Maria testified that she was shocked and did not believe it was true. According to Maria, she tried to talk to Kasey, and Kasey told her that she told the detective about Connor, but Kasey was upset and did not want to talk to Maria about the details. Maria said her husband was also shocked. Maria testified that law enforcement came to the house and took photographs, and she took Kasey to Safe Harbor for a sexual assault nurse exam.
Testimony of Kristin Lahey
Kristin Lahey testified that she is a licensed marriage and family therapist and mental health counselor with her own private practice in The Woodlands. Lahey testified that she treated Kasey in five sessions when Kasey was twelve, starting March 4, 2020, and ending on April 23, 2020. Lahey testified that one of her clients referred Kasey's mother to Lahey, and that Kasey's mother was concerned that Kasey was getting in trouble with school, spending time on social media, and struggling with anxiety and depression.
Lahey's progress notes for the sessions were admitted into evidence and published to the jury. Lahey testified that in her notes for the March 4, 2020 session, she noted that Kasey reported that her relationship with her mother and father was good, and that she used to have a good relationship with her brother. Lahey recalled that Kasey said that her brother no longer lived at home, she no longer had contact with him, and she did not miss him. According to Lahey, her notes from the March 18, 2020 session state that Kasey was still having trouble in school and that Kasey stated she liked to talk to friends and strangers on social media. Lahey recalled from the notes from the April 16, 2020 session that Kasey stated that she was chatting with people online and her mother discovered that she was talking to someone who was asking for "nudes" of Kasey and a police report was filed. According to Lahey, a victim of sexual abuse often is interested in sex sooner and is more likely to engage in risky behavior, and that Kasey's behavior in messaging with strangers about inappropriate content was an example of risky behavior. Lahey testified that her session notes for April 23, 2020 state that Kasey's mother stated that Kasey was interviewed at Safe Harbor and disclosed that her brother had molested her. Lahey stated that the notes indicate that Kasey was apprehensive about talking about the experience and had mixed feelings about talking about it. Lahey testified that Kasey wanted to change the subject from her brother because "she had a long interview about it and was done talking for now." According to Lahey, this statement was an example of Kasey's minimization and avoidance of her trauma. Lahey testified that she documented in the session notes that Kasey had reported the incident that had happened at the pool and how angry her brother became after being accused of being too aggressive and holding Kasey under the water too long and how the event led to him leaving the house and not returning. Lahey testified that Kasey's statements indicated to her that Kasey felt confused about why he left for good, and Kasey's confusion would be another example of Kasey minimizing and avoiding her trauma.
Kasey demonstrated many examples of avoidance and minimization of her trauma during the sessions. Lahey explained that trauma impacts the ability to recall, and the brain does not always recall events exactly in the order in which they occurred. Lahey explained that the brain compartmentalizes as a way of protecting, and that our brain will not want to think about things that are hard or make us feel bad, so we stop thinking about those things and "put them away" to try and avoid them. According to Lahey, this is an unhealthy process and can manifest into behavioral issues, anxiety, and depression. Therapy provides the victim with a safe space to talk about the trauma and come up with techniques to deal with their symptoms. Lahey explained that a six- to eight-year old's concept of time is based around events like birthdays, summer, a holiday, or visiting a family member, and that when that child turns twelve, thirteen, or fourteen, they are not going to be able to look back in time and recall the dates. Lahey testified that it is normal for someone that has experienced traumatic events caused by a family member to want to protect that family member.
Bonnie's Testimony
Bonnie, Connor's mother, testified for the defense. She testified that Connor was born on December 28, 1998, and that her ex-husband, Kirk, is Connor's father. According to Bonnie, Kasey is Kirk's daughter with Maria, and Bonnie got to know Kasey because Bonnie and Maria were friends and spent time together. Bonnie explained that Connor would often go between her house and Maria's house and that Bonnie and Maria lived only a mile apart. Bonnie recalled that in 2012 Connor was upset about Bonnie's second divorce, Connor wanted to spend more time with his father, and Bonnie stopped having control over when Connor would leave. Bonnie testified that Maria and Kasey would spend time at Bonnie's house when Kasey was a toddler and Bonnie would attend get togethers at Maria's house.
Bonnie testified that in 2016 Connor's truck was taken away from him. Bonnie testified that Connor quit high school, and in the summer of 2016 when Connor was "16 or 17[,]" he worked everyday painting fences and had a girlfriend,
Christy. According to Bonnie, she talked to Connor every day, but he would "come and go" and spend time at Bonnie's house, Maria's and Kirk's house, Connor's grandmother's house, and at his girlfriend's house. Bonnie testified that he did spend a lot of nights and mornings at her house that summer. Bonnie recalled that in December of 2017, Connor went to work in the oil field in Odessa and lived there for 60 to 90 days at a time and would come home in between for about a week. Bonnie testified that he would spend time at home with Christy, his girlfriend, and although Bonnie would not see him every day, she would see him on occasion. During the day Connor was either working or with her because her schedule allowed them to spend time together because she worked at night.
According to Bonnie, she stopped spending time with Maria because Connor was gone working in West Texas and Connor was the main reason they would spend time together. Bonnie recalled that in 2018, Maria's brother died, and the families were brought back together, but that Bonnie had not talked to Maria in the three years prior to trial. Bonnie recalled that it was hard for Kasey and Connor to get along and that Kasey's hyperactivity made her hard to handle.
Testimony of Tara Bodin
The defense called Tara Bodin, Kasey's school counselor in 2018 to 2019 and 2019 to 2020, when Kasey was in the fifth and sixth grades, to testify. According to Bodin, she only remembered Kasey when Kasey was in the sixth grade when she and Kasey often spoke, and Kasey never reported to Bodin that someone abused her. Bodin testified that if Kasey had reported such abuse, Bodin would have a mandatory reporting requirement to report it, and Bodin's failure to report it could result in losing her certification and possible criminal charges. Bodin recalled that from March 2020 school was virtual due to COVID and she was not interacting with students in person.
Jury Verdict on Guilt
The jury found Connor guilty of aggravated sexual assault of a child as charged in the indictment. Evidence at the Punishment Phase of the Trial
Brenda's Testimony
Brenda, one of Connor's ex-girlfriends, testified that she met Connor in 2019 when she was nineteen, and they started dating a few months later. Brenda testified that early in the relationship she became pregnant with their son, Ben. Brenda and Connor moved in with Brenda's mother in 2020, and Connor did not have a relationship with any of his family except his grandmother and his relationship with his mother was not good. Brenda testified that at the time Connor was working in the oil field "out west[]" and would be gone for periods of time. According to Brenda, the relationship was good at first, but then Connor was physically abusive to Brenda before, during, and after the pregnancy. Brenda recalled that Connor's abuse was "verbal[], physical[], emotional[], mental[], every way you can think of." Brenda testified that before she found out she was pregnant with Ben, Connor would shove, push, and choke her. She testified that her mother did not see the abuse and Brenda did not tell her about it, but that it was "behind closed doors" and at "convenient times." Brenda testified that the abuse was not because she provoked him, but that he believed "the world was out to get him" and he was "[v]ery angry at the world and at everyone." Brenda recalled that during her pregnancy, Connor would shove, choke, and push her. According to Brenda, when he choked her, he would apply constant pressure, she could not speak and would almost lose consciousness, and she feared him. Ben was stillborn in March of 2020. Brenda testified that she and Connor moved to Connor's mother's house because Brenda's mother did not want Connor living at her house anymore. Brenda recalled that living at Connor's mother's house was "toxic" and after about two months she told Connor she refused to live there. Brenda and Connor then moved to an apartment in Montgomery.
Brenda testified that she then became pregnant with their son, Oliver. Brenda recalled that Connor's violence against her was worse when she was pregnant with Oliver. According to Brenda, when she was five months pregnant with Oliver, Connor was driving her to work, and he was stopped by law enforcement. Law enforcement arrested him for an outstanding warrant, and he said he was not aware of a warrant. Brenda recalled that she learned that the warrant was for a sex offense and that Connor denied the offense and said "that it was a lie[.]" Connor was released on bond, and she would accompany him to his court appearances.
Oliver was born on February 11, 2021. Brenda recalled that she went to the courthouse with Connor on April 15, 2021, when he appeared for the sex offense charge, but she and two-month-old Oliver stayed in the car while Connor went inside for his court appearance. According to Brenda, Connor left his iPhone in the car and took her flip phone with him. Brenda explained that he took her flip phone in instead because he had originally corresponded with his attorney with Brenda's phone, so it was just more convenient to keep using her phone when corresponding to the attorney. She discovered from looking at his phone that day that he had been watching pornography almost daily and "looking up Houston escorts." She was shocked and knew it was detrimental to his court case because one of his bond restrictions was that he was not allowed to access the internet. Brenda testified that she decided then to leave the relationship and, to hold herself to that decision, she messaged Connor's mother's phone to tell her the reason for leaving him and included screen shots of what Connor had accessed on the internet. A copy of the messages exchanged between Connor's mother and Brenda that day were admitted into evidence and published to the jury. Connor's mother responded to Brenda that she was "at a loss" and stated that Connor was not "supposed to be on the internet and this is potentially detrimental to his case."
After Connor's court appearance, Brenda asked him why he was accessing such things on the internet, and he made excuses. Brenda testified he then pulled the car behind a shopping center, got out of the truck, crawled into the back where she was sitting with Oliver, and "choked [her] over [Oliver]'s car seat." According to Brenda, Connor used his hands to choke her with "[i]ntense pressure on [her] neck[,]" and she begged him to stop but he did not stop until she was unable to speak. Brenda recalled that after that she told him either in the car or at their apartment that she was leaving him. Brenda testified that she stayed in a separate room that night and he was trying to convince her to stay.
According to Brenda, the next day when Connor came home from work, they were still acting distant and not really speaking to each other. After she bathed Oliver, she was in the bathroom and handed him to Connor and Oliver was asleep. Brenda recalled that Connor took Oliver from the bathroom and while she was drying off, she heard Oliver scream that "wasn't like a scream [she] ever heard from [him]." Brenda testified that she ran around the corner and Connor was standing at the edge of the bed and Oliver was lying flat on his back on the bed with a diaper on. She asked Connor what happened, and Oliver screamed a few times and then went unconscious. Brenda testified that Connor put Oliver on the ground and tried to do CPR by pressing on his chest. After they realized Oliver was breathing, Brenda wanted to call 911 but Connor said Oliver was fine and that she did not need to call 911. Brenda recalled that she watched Oliver sleep the entire night and she took Oliver to Baylor Scott and White Hospital the next morning.
Oliver was discharged from the hospital with "briefly resolved unexplained events" or "BRUE" and that something caused him to go unconscious, but the issue resolved itself. Brenda testified that she did not remember the staff doing any scans or tests. According to Brenda, the next day after being released from the hospital Oliver had "another episode" at the apartment when Connor was home, and although Oliver was conscious, his breathing was slower, and he was screaming. Brenda did not take him to the hospital because the hospital staff told her when Oliver was released that if he had another episode, she would not need to bring him in unless the episode lasted longer than three minutes. The next night Oliver "projectile vomited" and "was pale." Brenda testified that she took him to his pediatrician the next day. Brenda recalled that the pediatrician said Oliver's blood levels were low and that he needed a blood transfusion, so he was transferred to Baylor Scott and White Hospital. The hospital staff determined that Oliver did not need a blood transfusion but transferred him by ambulance to Texas Children's Hospital in The Woodlands. Brenda testified that her mother accompanied her to both hospitals, but that Connor was at work.
According to Brenda, they stayed at Texas Children's from April 20, 2021, through April 22, 2021, and she kept Connor updated through texts and phone calls. Photographs of Oliver at Texas Children's and a copy of the text messages between Brenda and Connor during those days were admitted into evidence and published to the jury. Brenda recalled that during Oliver's brain scans at Texas Children's, she texted with Connor. She testified that he texted her that he had looked up signs of infant brain bleed and he asked if the scans showed any blood on Oliver's brain. Brenda testified that she did not have any concerns about Oliver's head, but Connor mentioned that there was a time when he had been tripped up by the dog and that Oliver bumped his head. Brenda was informed by the hospital staff that they found blood on Oliver's brain and down his spine and that he was going to be transferred to Texas Children's in downtown Houston. Brenda recalled that by this time Connor was at the hospital and went with them to Texas Children's in downtown Houston.
Brenda was with Oliver at the downtown hospital from April 22, 2021 through April 26, 2021. CPS or social workers became involved, and Brenda spoke with the social workers at the hospital and provided them a timeline of what had transpired. Brenda testified that she was in shock and that in hindsight Connor's interaction with the social workers was "weird" because he kept "emphasizing the dogs[]" and how they were rambunctious. According to Brenda, their two dogs were not vicious, and Oliver had never been put in a position where they could hurt him. Brenda recalled that when the police arrived at the hospital, Connor's demeanor changed. Brenda spoke with the police and a detective took pictures and looked at Brenda's phone. Brenda testified that Connor saw the detective look at Brenda's phone, and Connor was adamant he would talk to the detective and told Brenda that she did not have to talk to the detective either. Text messages between Brenda and Connor while Oliver was hospitalized were admitted into evidence and published to the jury. She recalled that the messages were from Connor's iPhone. She stated that in one of the texts on April 24, 2021, Connor texted her that he thought she should tell CPS about the "chair incident" that he told her about where he tripped resulting in Oliver hitting his head, and he said that he had already told the first social worker about it. She testified that she gave an interview at the hospital and that she left Connor in April of 2021. She recalled that, unbeknownst to Connor, she talked with the detective again on May 18, 2021, but she was still protecting Connor and initially she did not reveal that Connor had physically abused her because it was humiliating. After the detective told her that he believed there was something she was not telling him, she told him "partially[]" about how Connor had physically abused her but did not tell what happened to "the full extent[.]"
Brenda testified that the only other people that had taken care of Oliver were Connor and her mother. Brenda said that in the evenings when Connor came home Connor was bothered by Oliver's fussiness and Connor told Brenda that he thought Oliver did not like him. She recalled that there were times when Connor would be playful with Oliver and "toss him in the air[]" and Brenda told him to be gentle because Oliver was younger than two months old. During the investigation, Oliver was not allowed to stay with Connor or Brenda, and Oliver stayed with Brenda's mother. Brenda explained she did everything that was required of her and Oliver was returned to her. She recalled that there was a concern at the hospital that Oliver's injuries would affect his ability to develop properly and concern for his future. According to Brenda, Oliver had many follow-up appointments and worked with specialists. At the time of trial Oliver was doing well, had hit all his milestones, and was talking. Oliver was attending a good school and developmentally he was at the top of his class.
Testimony of Dr. Reena Isaac
Dr. Reena Isaac testified that she is a physician at Texas Children's Hospital in downtown Houston and is on the child abuse pediatrician team at the hospital. A copy of the report generated for the purposes of medical diagnosis and treatment of Oliver in April 2021 was admitted into evidence. Dr. Isaac testified that Oliver's medical diagnosis was based on his medical history, physical exam, labs, and imaging studies. Dr. Isaac explained that the report notes that the initial finding from the medical staff was "hyperdense subdural hematoma[,]" which means a collection of blood inside Oliver's head under the skull right above the brain. She agreed that the report noted that the bleed was "without significant mass effect[,]" meaning that the blood was not pushing down or compressing the brain. Dr. Isaac testified that the report noted that the location of the blood was "about the cerebrum and the cerebellar areas." Dr. Isaac explained to the jury that the location of the blood indicated that the injury was attributable to "repetitive acceleration/deceleration forces[]" commonly known as "shaken baby syndrome[.]" Dr. Isaac testified that Oliver underwent genetic and metabolic testing to determine if Oliver's injuries could have been caused by other factors and those tests came back negative. The MRI of the brain indicated that trauma had occurred to the brain. According to Dr. Isaac the term "hyperdense" in the diagnosis refers to an acute blood that "shows up bright on the scans[]" and indicates the injury causing the bleed occurred in the past seven days. Dr. Isaac explained that a full range of symptoms of "shaken baby syndrome" exists and that those symptoms can include irritability, cessation of breathing or feeding, vomiting, loss of consciousness, and seizures. Dr. Isaac testified that although Oliver is doing well now, his injuries were serious and could have been life-threatening.
Dr. Isaac agreed that a demonstrative video, Exhibit P-14(b), would aid the jury in understanding how she was describing the movements of the brain and how injuries like Oliver's are caused. Exhibit P-14(b) was admitted for demonstrative purposes over the defense's objection. As the animated video was played for the jury, Dr. Isaac explained how the video depicted a baby's brain moving inside of its skull and resulting blood collection at the top of the brain after the baby's neck or head could not catch up to the speed of the change in direction. According to Dr. Isaac, the collection of blood in the brain was due to the tearing and breaking of veins. The video portrayed animation of a baby being shaken and then zoomed in on the brain to show what occurred in the brain as a result.
Dr. Isaac interviewed Brenda and Connor. Dr. Isaac recalled that the interview with Connor was "difficult[,]" and that although she posed direct questions, Connor "would ramble quickly and twist into tangents often[]" and "there were noted gaps and fractures of statements in his narratives." According to Dr. Isaac, when she interviewed Brenda, the interview was clear, and it was not difficult to get the information needed from Brenda. There was no explanation from Oliver's caregivers consistent with his injuries, and his injuries could not have been caused by a parent tripping and bumping Oliver's head, or by Oliver's violent crying, or by someone rolling over onto Oliver.
Testimony of Officer Joe McGrew
Joe McGrew, an officer with the Conroe Police Department, testified that in April of 2021 he was working as a detective for the department and assigned to the juvenile division. According to Officer McGrew, a patrol officer took the initial report related to Oliver's case on April 23, 2021, when a CPS special investigator called and made the report. Officer McGrew recalled that on April 26, 2021, CPS supervisor Jose Alaniz advised McGrew that he was also assigned to the case. That same day, Officer McGrew and Alaniz went to Texas Children's Hospital to see Oliver, Brenda, and Leah (Brenda's mother) and to establish a timeline of Oliver's symptoms. McGrew was able to interview Brenda, whom McGrew described as "on the verge of distraught [and] extremely rattled[,]" and Leah seemed concerned. McGrew took photographs of Oliver. McGrew recalled that he obtained Brenda's consent to search her cell phone. McGrew testified that messages between Brenda and Connor related to the investigation were extracted from Brenda's phone.
Officer McGrew interviewed Connor on April 29, 2021, at the Conroe Police Department. Officer McGrew noted that whenever he touched on a subject that Connor seemed uncomfortable with, like possible situations in which Oliver might have been injured, Connor started talking about something else. Eventually, Connor told McGrew that he tripped and fell resulting in the baby hitting his head, and McGrew had Connor demonstrate the fall with a small doll. According to Officer McGrew, the contact that Connor demonstrated was "[n]ot very hard at all." Officer McGrew asked for Connor's consent to review his phone and Connor refused and said it was his work phone. Officer McGrew informed Connor that he was going to confiscate Connor's phone pending a search warrant, which McGrew explained at trial is allowed because a moveable object like a phone is easily altered so a phone can be seized and held in evidence until a warrant is signed by a judge. Officer McGrew recalled that Connor became extremely confrontational. According to Officer McGrew, he obtained a warrant to download Connor's phone. Officer McGrew testified that Connor was "on the fence" about continuing the interview.
Officer McGrew recalled that he quoted Oliver's medical records to Connor and gave him the explanation that the doctor gave for those injuries, and Connor continued to deflect the conversation in other directions. According to McGrew, Connor admitted that he was the only one with Oliver when Oliver became symptomatic and that he also told Brenda that they did not need to call 911. McGrew recalled that Connor continued to suggest possible causes for the injury that McGrew had already eliminated as possibilities. McGrew informed Connor that the doctor had told McGrew that Oliver's cortical vein injury could have only been sustained from intentional actions and with significant force, then Connor "reached back and stretched" in a way that McGrew was familiar with and was referred to in "police culture" as "the felony stretch" because when a person gets "super tense" they stretch to try to relieve the strain.
Connor told McGrew that on the night that Oliver showed injury symptoms, Connor was in the bedroom putting Oliver down after his bath and Oliver "belched and started screaming because of the acid reflux." Connor stated Oliver vomited and Connor yelled for Brenda, who was in the bathroom, to come get Oliver. After McGrew's investigation in the case, he determined that the only person that was with Oliver at the time he became symptomatic was Connor. According to McGrew, once he received the extraction from Connor's phone, McGrew noticed there was no data on the phone from April 12, 2021 and April 29, 2021. McGrew testified that ultimately Connor was arrested for Oliver's injuries. McGrew recalled that much later in the case he learned that Connor had a second phone that law enforcement did not know about, but at that point it was too late to try to locate it.
Leah's Testimony
Leah, Brenda's mother, testified that before Oliver's hospitalization, Connor and Brenda's relationship was "[u]nhealthy[]" because of Connor's demeanor and attitude. According to Leah, Connor and Brenda lived with her briefly until she told Brenda that Connor had to leave because he was disrespectful. Brenda chose to move out with Connor. Leah recalled that during the CPS investigation when Oliver was not allowed to live with Brenda or Connor, Oliver lived with Brenda, and she cared for him for several months. She described the text messages from Connor that she received during that time as "hateful" and "harassment." The messages were admitted into evidence and published to the jury. Leah explained that the messages made her feel threatened and in fear of what could happen to her and Oliver. She recalled that when Oliver was released from the hospital to her care, Brenda and Connor came to Brenda's house for visitation, which was allowed by CPS and Brenda and Connor had an altercation. According to Leah, Connor was "inches from [Brenda's] face" and threatening her, and he was also confrontational with Leah. Leah testified she told Connor to leave her house and never return, and she had not seen him since. Leah agreed she never saw Connor be physically aggressive with Oliver and never saw Connor be physically violent to Brenda.
Maria's Testimony
Maria, Kasey's mother and Connor's stepmother, testified that she considers herself to be Connor's mother and she volunteered to testify during the punishment phase. According to Maria, Connor came into her life when he was five years old, and she helped raise him. She testified that she last saw him in 2018 and she has good memories with him. Maria testified that Connor is "a good kid[]" with "good potential[]" whom she loves despite what he has been accused of or convicted of. Maria expressed that she wished he could get help. Maria stated that these events happened "when he was young and dumb[]" and that he has great potential. Maria was not in trial to hear the details about the abuse and Kasey had yet to share those details with her. Maria explained that it would be Kasey's choice whether Connor would be allowed to be involved with the family and Maria would try to get her therapy before she made such a decision. Maria admitted she did not know about the details of the case against Connor involving Brenda and Oliver.
Kirk's Testimony
Kirk, Kasey's and Connor's father, testified by Zoom. Kirk testified that he was aware that Connor had been convicted of a crime against Kasey and of the allegations against Connor involving Brenda and Oliver. Kirk recalled that the last time he saw Connor was in 2018. According to Kirk, he understood that the felony conviction in this case required jail time. Kirk testified that he believed that Connor "need[ed] to go to jail for stuff," but Kirk did not think that "it need[ed] to ruin his whole entire life over this." Kirk testified that he would do anything to protect his daughter, that he was torn between protecting his two children, and that he wanted Connor to come home and be a part of Kirk's family. Kirk expressed his wish that the jury give Connor leniency because he did not have a criminal history.
Kirk acknowledged that he "probably" told the prosecutors after Kasey's outcry that he believed his daughter "a hundred percent[]" but that he believed both of his children and this case put him in a difficult position. Kirk admitted he may have told Detective Randall that Connor "ha[d] threatened everybody" and that Connor had threatened Maria after Connor was grounded from his truck, and that Connor had previously threatened Kasey and always carried a pocketknife. Kirk agreed that as far as the pool incident, he told Detective McGrew that "Connor held [Kasey] down in the pool too long[]" and that the family got upset with Connor and Connor left. Kirk testified that he loved Connor, had forgiven Connor for all his indiscretions, and believed Connor has the capacity to change.
Jury Verdict on Punishment and Sentencing
After the punishment phase of the trial, the jury assessed punishment at seventy-five years of confinement. The trial court sentenced Connor in accordance with the jury's verdict, and Connor timely appealed.
Admission of Extraneous Offense Evidence
In issue one, Connor argues that the trial court abused its discretion in overruling Connor's objection to the admission of extraneous offense evidence and the error affected his substantial rights. According to Connor, he objected twice to the admission of the extraneous offense evidence: once during the outcry witness hearing by the forensic interviewer and once prior to Kasey's testimony about the extraneous offenses. Connor states on appeal that his objection at the conclusion of the outcry witness hearing to extraneous offense evidence was on the grounds that the court "lacked jurisdiction" to consider the extraneous offense of the knife attack because Conor was a minor at that time and that due to the unclear dates regarding the chest and vaginal touching, such evidence would be confusing to the jury. As to Connor's objection during Kasey's testimony, he admits that he did not use the rule number "403" when objecting because trial counsel "confused the rule number[.]" Connor argues that he preserved error as to his Rule 403 objection, however, because defense counsel's argument that the evidence would be confusing to the jury and the trial court's comment that the probative value of the extraneous offense evidence outweighed the prejudicial effect demonstrated that "the court had sufficient notice of the Rule 403 objection and ruled specifically on that objection" and that it was clear from the exchange between the trial court and defense counsel that defense counsel "was objecting to all the extraneous offense evidence."
On appeal, Connor complains of the admission of testimony regarding the following extraneous offenses: Connor cutting Kasey with a knife, Connor touching Kasey's chest and vagina, and Connor tying Kasey to a tree and hitting her with a stick. According to Connor, the trial court abused its discretion in overruling Connor's objection to unfair prejudice regarding Kasey's testimony to these extraneous offenses because the evidence had low probative value, Kasey could not specify when the events occurred, the extraneous offenses were not related to the type of sexual contact alleged in the charged offense but "instead just made [Connor] seem like a bully[,]" there was a high likelihood that the jury would be confused or distracted by the evidence, the State did not have a need for the testimony, and presenting the extraneous offense evidence was time-consuming and comprised of over twenty pages of the reporter's record. Connor asserts that the extraneous offense evidence harmed his substantial rights because the State argued to the jury that it could use the evidence "to say that [Connor] did it before so I believe he did it this time." According to Connor, the admission of the extraneous offense evidence also harmed his substantial rights considering the weakness of Kasey's testimony and because the State emphasized the evidence during its questioning of Kasey and in its closing.
The State responds that Connor failed to preserve his objection because he did not raise a Rule 403 objection during the article 38.37 hearing and failed to object to the extraneous offense evidence during Simon's, Phillips's, and some of Kasey's testimony. The State also argues that even if Connor had preserved his objection, the trial court did not abuse its discretion in admitting the evidence, and even if it did err, the error was harmless.
Article 38.37 of the Texas Code of Criminal Procedure provides in pertinent part:
(b) Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including:
(1) the state of mind of the defendant and the child; and
(2) the previous and subsequent relationship between the defendant and the child.Tex. Code Crim. Proc. art. 38.37, § 1(b). Rule 403 of the Texas Rules of Evidence provides:
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.Tex. R. Evid. 403. We review the trial court's decision to admit evidence under an abuse of discretion standard. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). If the trial court's ruling is within the "zone of reasonable disagreement[,]" there is no abuse of discretion. Id.; Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011).
As stated above, on appeal, Connor only complains of the trial court's admission of extraneous offense evidence related to allegations of Connor cutting Kasey with a knife, touching her chest and vagina, and tying her to a tree and hitting her with a stick.
The Court of Criminal Appeals has explained that "'it is well settled that an error in admission of evidence is cured where the same evidence comes in elsewhere without objection; defense counsel must object every time allegedly inadmissible evidence is offered.'" Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991) (quoting Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984)).
Prior to Kasey's testimony about touching her chest and vagina, the following testimony was presented to the jury without objection: Simon testified that Kasey said Connor had touched her private parts with his hand, Phillips testified that Kasey told her that Connor had touched "both her boobs and her vagina[,]" and Deputy Randall testified that Kasey reported that Connor touched her breast and intimate areas. Prior to Kasey's testimony about Connor cutting her with a knife, the following testimony was presented to the jury without objection: Simon testified that she took photographs of Kasey's right wrist where Kasey said Connor cut her with a knife and there was a scar that was a "5 centimeter linear hypopigmentation," and Deputy Randall testified that Kasey reported being cut by Connor with a knife and that he photographed the scar that Kasey reported was caused by the assault. Accordingly, even if we interpret Connor's objection to extraneous offense evidence during Kasey's testimony as a Rule 403 objection, the earlier unobjected-to admission of the same or similar evidence of Connor cutting Kasey with a knife or touching her chest or vagina rendered any error harmless. See id. (error in admission of evidence is cured where the same evidence comes in elsewhere without objection).
As for Kasey's testimony about Connor tying her to a tree and hitting her with a stick, even if we assume that Connor preserved his Rule 403 complaint to this alleged extraneous offense evidence during Kasey's testimony, we conclude the trial court's decision to admit the evidence was within the zone of reasonable disagreement. See Gonzalez, 544 S.W.3d at 370. The trial court could have determined that the evidence had probative value to explain Connor's hostile sibling relationship with Kasey. Issue one is overruled.
Jury Charge
In issue two, Connor argues that the trial court erred by not including a section of 8.07(b) of the Penal Code in the instruction to the jury and contends that the error caused egregious harm. According to Connor, the trial court should have sua sponte included the section 8.07(b) instruction because Kasey's, Maria's, and Bonnie's testimony raised an issue of whether the alleged sexual contact occurred prior to Connor's seventeenth birthday. Connor acknowledges that he did not object to the lack of the section 8.07(b) instruction. According to Connor, the failure of the jury charge to include the instruction caused egregious harm because the jury charge authorized conviction for any offense committed on a date prior to the issuance of the indictment and "the jury most likely . . . relied on [Kasey]'s vague testimony to conclude that the conduct happened much earlier than Appellant's 17th birthday[.]" The State responds that the charge sufficiently instructed the jury and that a section 8.07(b) instruction was not required because the jury heard no evidence that Connor committed the charged conduct when he was under the age of seventeen. The State also contends that any error in failing to include the instruction was not egregiously harmful.
Section 8.07(b) of the Texas Penal Code generally provides, in pertinent part, that a person may not be prosecuted for or convicted of any offense committed before reaching age seventeen. Tex. Penal Code Ann. § 8.07(b); see Taylor v. State, 332 S.W.3d 483, 487 (Tex. Crim. App. 2011) (describing section 8.07(b) as "a prohibition of prosecutions and convictions based upon offenses committed before the age of seventeen[]"). In Taylor, the Texas Court of Criminal Appeals concluded that a jury charge is "erroneous if it presents the jury with a much broader chronological perimeter than is permitted by law." 332 S.W.3d at 488. If a section 8.07(b) instruction was the law applicable to this case, the trial court was required to sua sponte include the instruction in the jury charge. Id. at 486. Section 8.07(b) is the law applicable to the case if some evidence exists to support a rational inference that Connor was less than seventeen when the charged offense occurred. See Shaw v. State, 243 S.W.3d 647, 657-58 (Tex. Crim. App. 2007). In deciding whether to include the section 8.07(b) instruction, the trial court was entitled to "rely on its own judgment, formed in the light of its own common sense and experience, as to the limits of rational inference from the facts proven." Id. at 658.
Kasey testified that Connor put his penis in her mouth on two occasions in the summer before she attended third grade. Kasey also recalled that the two incidents were when she was old enough to use a microwave and that she was old enough to use a microwave at eight years old. Bonnie, Connor's mother, testified that Connor was born on December 28, 1998. Maria, Kasey's mother, agreed that Kasey was born in September of 2007 and testified that Kasey and Connor are about nine years apart. Deputy Randall testified that, based on his investigation and the school records he compiled, Connor was born on December 28, 1998, Kasey was born on September 6, 2007, Kasey would have finished second grade at age 8 and started third grade at age 8, Connor would have turned seventeen on December of 2015 and was a few months shy of his eighteenth birthday in the summer of 2016, and the summer of 2016 was the summer before Kasey was in third grade. Deputy Randall testified that he derived a date for the alleged offense as approximately June 1, 2016, "as that's semi in the summertime." Accordingly, the evidence established that Connor was seventeen at the time of the alleged offense.
Because the record contains no evidence to support a rational inference that Connor was under the age of seventeen at the time of the charged offense, the record did not establish that section 8.07(b) was the law applicable to the case. See id. at 657-58. Accordingly, the trial court did not err in omitting an 8.07(b) instruction in the jury charge. Issue two is overruled.
Admission of Demonstrative Evidence
In issue three, Connor argues that the trial court abused its discretion in overruling Connor's Rule 403 objection to a demonstrative video that depicted violence toward a child. During the punishment phase of the trial, Connor objected to a video demonstrating the motions of the brain that can cause the same type of injury as Oliver's injury. Connor objected based on Rule 403 and argued that the demonstrative video was "more prejudicial than probative." The trial court overruled the objection, finding that the probative value of the video outweighed the prejudicial effect, and the video was admitted "for demonstrative purposes only" and played for the jury. Connor argues on appeal that the video did not resolve any controversy in the case and had low probative value, the video was used to attempt to show that Connor caused the injuries to Oliver despite the prosecution's statement that it was not being used for that purpose, and that the "gruesome[]" video encouraged the jury to speculate that Connor had acted in the same violent way that was portrayed in the video. Connor asserts on appeal that the error affected his substantial rights because the jury was likely to give the demonstration undue weight and the video encouraged the jury to assume that Connor had handled the child in the same violent way as depicted in the video.
Demonstrative evidence is evidence admitted for use as a visual aid or to illustrate a point, but it must meet the relevancy and materiality requirements imposed by Rule 403 of the Texas Rules of Evidence. Baker v. State, 177 S.W.3d 113, 123 (Tex. App.-Houston [1st Dist.] 2005, no pet.); see also Pugh v. State, 639 S.W.3d 72, 84-86 (Tex. Crim. App. 2022). "[T]he proponent must first authenticate [the demonstrative evidence and then] establish that the evidence is fair and accurate and that it helps the witness to demonstrate or illustrate his testimony." Torres v. State, 116 S.W.3d 208, 213 (Tex. App.-El Paso 2003, no pet.); see also Pugh, 639 S.W.3d at 84-86. Under Rule 403, even relevant evidence may be excluded "if its probative value is substantially outweighed by [the] danger of . . . unfair prejudice, confusion [of] issues, misleading the jury, . . . or needless[] present[ation] of cumulative evidence." Tex. R. Evid. 403; Gonzalez, 544 S.W.3d at 372.
A Rule 403 balancing test includes the following factors:
(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). The rules of evidence favor the admission of relevant evidence and there is a presumption that relevant evidence is more probative than prejudicial. See Martinez v. State, 327 S.W.3d 727, 737 (Tex. Crim. App. 2010).
The admission of demonstrative evidence is reviewed for an abuse of discretion. Pugh, 639 S.W.3d at 91; Simmons v. State, 622 S.W.2d 111, 114 (Tex. Crim. App. 1981). "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)); see also State v. Mechler, 153 S.W.3d 435, 439-40 (Tex. Crim. App. 2005).
After hearing Dr. Isaac testify about how the demonstrative video would aid the jury in understanding the movements of the brain and how injuries similar to Oliver's are caused, the trial court could have reasonably determined that the factors of the probative force of the evidence and the State's need for the evidence to help the jury to understand Dr. Isaac's medical testimony weighed in favor of admission of the demonstrative video. As for whether the video had a tendency to suggest a decision on an improper basis, confuse or distract from the main issues, or to be given undue weight by the jury, the trial court advised the jury that the video was admitted "for demonstrative purposes only" and the video did not portray Connor as the person shaking the baby nor did Dr. Isaac explain what was happening in the video as if it was Connor causing the injury in the video. See Gigliobianco, 210 S.W.3d at 641-42. When considering the amount of evidence presented in the trial, the time spent playing the demonstrative video was comparatively short and did not consume an inordinate amount of time or merely repeat evidence already admitted. See id. Based on the entire record, we cannot say the trial court's decision to admit the video into evidence solely for demonstrative purposes was outside the zone of reasonable disagreement. See De La Paz, 279 S.W.3d at 343-44.
That said, even if the trial court erred in overruling Connor's objection, we will not reverse a judgment if the error is harmless. See Tex.R.App.P. 44.2. "The erroneous admission of evidence is non-constitutional error." Gonzalez, 544 S.W.3d at 373 (citing Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008)). We will disregard non-constitutional error that does not affect a criminal defendant's substantial rights. See Tex.R.App.P. 44.2(b). The Court of Criminal Appeals has construed this to mean that "an error is reversible only when it has a substantial and injurious effect or influence in determin[ing] the jury's verdict." Gonzalez, 544 S.W.3d at 373 (citing Taylor, 268 S.W.3d at 592). "If we have a fair assurance from an examination of the record as a whole that the error did not influence the jury, or had but a slight effect, we will not overturn the conviction." Id. In determining whether an error affected an appellant's substantial rights, the court should consider: "(1) the character of the alleged error and how it might be considered in connection with other evidence; (2) the nature of the evidence supporting the verdict; (3) the existence and degree of additional evidence indicating guilt; and (4) whether the State emphasized the complained of error." Id.
"[T]he sentencing authority has always been free to consider a wide range of relevant material." Payne v. Tennessee, 501 U.S. 808, 820-21 (1991) (citation omitted). "In a non-capital felony trial, evidence is admissible during the punishment phase if 'the court deems [it] relevant to sentencing.'" Hayden v. State, 296 S.W.3d 549, 552 (Tex. Crim. App. 2009) (quoting Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1)). Determining admissibility during the punishment phase is a policy function rather than one of relevancy. Id. (quoting Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999)).
"[T]he factfinder's role during the guilt phase is different from its role during the punishment phase." Id. If evidence assists the factfinder in deciding the appropriate sentence for the defendant given the facts of the case, then it is relevant. Id. (citation omitted). The Court of Criminal Appeals has explained, "[i]nevitably, '[d]eciding what punishment to assess is a normative process, not intrinsically factbound.'" Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018) (quoting Murphy v. State, 777 S.W.2d 44, 63 (Tex. Crim. App. 1989) (plurality op. on reh'g)).
Article 37.07, section 3(a)(1) of the Texas Code of Criminal Procedure states that during the sentencing phase, the State may offer evidence "as to any matter the court deems relevant to sentencing[.]" Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). The term "relevant" is not defined, however the statute also provides that evidence relevant to sentencing includes, but is not limited to: (1) the prior criminal record of the defendant; (2) the defendant's general reputation; (3) the defendant's general character; (4) an opinion regarding the defendant's character; (5) the circumstances of the offense being tried; and (6) notwithstanding Texas Rules of Evidence 404 and 405, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which the defendant could be held criminally responsible, regardless of whether the defendant has previously been charged with or finally convicted of the crime or act. See id.
Significant evidence was admitted throughout the trial that supports the jury's sentence. During the guilt-innocence phase of the trial the jury heard testimony of multiple sexual offenses by Connor against Kasey, as well as how he threatened her, how he cut her, and how he held her head underwater until she could not breathe. During the punishment phase, the jury heard Brenda's testimony about the abuse she endured by Connor before, during, and after her pregnancies. Brenda told the jury she was afraid of Connor. The jury heard that shortly after Brenda informed Connor that she was leaving him, Oliver became unconscious while Oliver was with Connor. The jury saw the texts between Connor and Brenda during Oliver's hospitalization and heard Officer McGrew's testimony regarding Connor's behavior when being questioned. The jury also heard testimony from Brenda's mother that Brenda feared what Connor would do to her and Oliver. The jury heard medical testimony about Oliver's injury and the type of abuse that would cause that injury. The jury could have considered Brenda's testimony that when leaving the courthouse after a hearing in this case, Connor pulled the car over and physically assaulted Brenda when she was sitting next to Oliver. The jury could have also considered that Connor did not turn over one of his phones and that he was violating one of his bond restrictions.
Based upon a review of the entire record, we have fair assurance that any error committed by the trial court in admitting the demonstrative video did not influence the jury or had but a slight effect. See id. The record does not show that a substantial right of Connor's was affected or that any error in admitting the video had a substantial and injurious effect or influence over the jury's verdict. See id. We overrule issue three.
We affirm the trial court's judgment of conviction.
AFFIRMED.