Opinion
05-23-00121-CR 05-23-00122-CR
06-20-2024
MIGUEL MENDEZ, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47 230121F.U05
On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause Nos. F21-58585-H, F21-58586-H
Before Justices Molberg, Nowell, and Kennedy
MEMORANDUM OPINION
NANCY KENNEDY JUSTICE
A jury convicted appellant Miguel Mendez of two counts of aggravated sexual assault of a child and sentenced him to 60 years' confinement for each offense. On appeal, appellant challenges the trial court's designation of Bernadette Yupit-Martinez as the outcry witness and the admission of her testimony on certain topics appellant claims were irrelevant. In addition, appellant urges the trial court erred in admitting various exhibits and a hearsay statement. We affirm the trial court's judgments. Because all issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.4.
In his opening brief, appellant also asserted his substantial rights were affected when Detective Greene mentioned additional charges, in violation of a motion in limine, and when the State asked the nurse who conducted the sexual assault nurse examination if she met the complainant prior to her physical exam. In his reply brief, appellant withdrew these complaints, which were identified as appellant's second issue.
Background
Appellant is the father of two daughters. K.M. is his biological daughter, and I.D., the complainant, is his stepdaughter. I.D. has an autism spectrum disorder and was nonverbal until she was about the age of four. When I.D. was twelve years old, she disclosed to her mother a sexual contact by appellant. After making the disclosure, I.D. learned for the first time that appellant was not her biological father.
Appellant was thereafter charged with two counts of aggravated sexual assault of a child under the age of fourteen years. Appellant pleaded not guilty to both offenses and exercised his right to trial by jury.
During the guilt-innocence phase of trial, the State's witnesses were I.D.; I.D.'s mother; I.D.'s special education teacher; Bernadette Yupit-Martinez, the designated outcry witness; I.D.'s therapist; Detective Greene, the investigating officer; and a nurse in the Referral and Evaluation of At Risk Children (REACH) clinic. Appellant testified in his defense.
I.D.'s middle school teacher testified that I.D. was thirteen years old at the time of trial and was reading at around a first or second grade level and learning at a third or fourth grade level. She indicated that I.D. is on the mild end of the autism spectrum, is not easily influenced, is a strong leader, and can convey very well what she does or does not want.
I.D.'s mother testified that there was no infidelity or any other problems between her and appellant. She indicated that I.D. first mentioned the sexual abuse when she was twelve years old while they were discussing menstruation. I.D.'s mother showed I.D. educational photos to teach her about the parts of the body, and, upon seeing the photos, I.D. began to describe an experience she had with appellant that was sexual in nature. Approximately two weeks later, after speaking with a friend, I.D.'s mother took I.D. to a doctor to be examined.
I.D. described the layout of the house she shared with appellant and her family and told the jury about the charged sexual assaults that occurred in the bedroom her mother and appellant shared and in a bathroom, all of which involved penetration of or contact with I.D.'s anus by appellant's penis. In addition, I.D. testified about instances involving oral sex. While I.D. testified, the prosecutor wrote down what she said. At the conclusion of I.D.'s testimony, the State moved to admit two pieces of paper containing the prosecutor's notes into evidence as State Exhibits 17 and 18. The trial court granted the State's request and overruled appellant's objection to same.
Bernadette Yupit-Martinez, an assistant director over forensic services with the Dallas Children's Advocacy Center, the designated outcry witness, provided the jury with general information concerning the nature of child sex cases and touched on the topics of delayed outcries, the grooming process, the types of people who are perpetrators, the process of disclosure, autism, the concept of time in a child's mind, as well as other topics. She also testified that she interviewed I.D. when I.D. was twelve years old. She explained that I.D. was very matter of fact in her answers, and that she did not lead I.D. in any of the answers. Yupit-Martinez further testified that I.D. reported that appellant had unlawfully touched her many times and made her feel uncomfortable. She recalled three separate instances of abuse described by I.D. that were reported to have occurred when I.D. was ten years old. In one instance, I.D. described appellant squeezing her bottom as she walked past him. In another instance, I.D. explained appellant penetrated her anus with his penis while I.D. was bent over on the bed. I.D. explained to Yupit-Martinez how appellant disrobed her, positioned her, and that the experience felt weird and tingly. In a separate instance, I.D. explained appellant, her sister, and she took a shower together and afterwards appellant pulled her down onto his lap with his hands on her hips. She explained that his penis touched her anus, and it was painful.
I.D.'s therapist from the Dallas Children's Advocacy Center testified that she used cognitive behavioral therapy to address I.D.'s trauma and to teach her coping mechanisms. When the prosecutor asked the therapist, "Did she have any feelings with regard to who is responsible for abuse - - the abuse that she endured?" appellant's counsel objected on the basis of hearsay. The prosecutor responded the question sought to illicit testimony related to medical treatment and therapy. The trial court overruled the objection. I.D.'s therapist then proceeded to state that towards the end of treatment, I.D. was able to say that appellant was completely responsible for the abuse and that nothing was her fault.
Detective Greene testified regarding her investigation of I.D.'s outcry and a nurse in the Referral and Evaluation of At-Risk Children (REACH) clinic testified about her examination of I.D.
Appellant testified and denied I.D.'s allegations. He testified that he considers both K.M. and I.D. to be his daughters. He began taking care of I.D. when she was just a few months old and tried to be the best father he could be at just twenty-one years old with no experience and a ninth-grade education. He testified that he would never harm his daughter in any way, he does not know why she would say these things, and he loves both daughters the same.
The jury found appellant guilty of the charged offenses and assessed punishment in each case at sixty years' confinement. The trial court rendered judgments in conformity with the jury's verdicts and ordered the sentences to run concurrently. This appeal followed.
Discussion
I. Outcry Witness
In his first issue, appellant challenges the trial court's designation of Yupit-Martinez as the outcry witness and the trial court's admission of her testimony concerning the nature of sexual abuse.
A. Standard of Review and Applicable Law
The Texas Code of Criminal Procedure creates a hearsay exception of a child's outcry of abuse to an adult. Tex. Code Crim. Proc. art. 38.072; Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011). The exception allows the adult to testify about the child's statements to them. Crim. Proc. art. 38.072 § 2. It applies to a proceeding in the prosecution of an offense under Chapter 21 (Sexual Offenses) or 22 (Assaultive Offenses) of the penal code, if committed against a child younger than 14 years of age. Id. art. 38.072 § 1(1). The exception allows for the admission of statements that were made by the child subjected to the offense, that describe the offense, and were given to the first adult that was not the defendant. Id. art. 38.072 § 2(a).
To qualify as an outcry statement, the child's statement to the witness must describe the offense in some distinct manner and be more than a general allegation of abuse. Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990). The proper outcry witness is the first person to whom the child makes a statement that in some discernible manner describes the alleged offense. Id. The statement must be more than words that give a general allusion that something in the area of child abuse was going on. Id. Outcry-witness designations are event-specific, rather than person-specific, which means that more than one outcry witness may testify if each witness testifies about a different event. See Rosales v. State, 548 S.W.3d 796, 806-07 (Tex. App.-Houston [14th Dist.] 2018, pet. ref'd). Only one outcry witness per event is permitted. Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011).
The trial court determines in the first instance whether one or more witnesses may be designated as outcry witnesses, and we review that determination for an abuse of discretion. See Garcia, 792 S.W.2d at 92; Polk v. State, 367 S.W.3d 449, 452 (Tex. App.-Houston [14th Dist.] 2012, pet. ref'd). A trial court has broad discretion when deciding which witnesses qualify as outcry witnesses. Sims v. State, 12 S.W.3d 499, 500 (Tex. App.-Dallas 1999, pet. ref'd). A court's designation of an outcry witness will be upheld when it is supported by the evidence. Polk, 357 S.W.3d at 452.
B. Analysis
In appellant's cases the trial court ruled that Yupit-Martinez was the outcry witness for both of the charged offenses. Appellant contends I.D.'s mother was the appropriate outcry witness because she was the first person to whom I.D. disclosed the alleged abuse. To review this claim, we must first recount the testimony from the outcry hearing.
At the outcry hearing, I.D.'s mother testified that she was the first adult with whom I.D. shared information about the abuse she experienced and was prompted to contact the Dallas Children's Advocacy Center by I.D.'s statement that "my Pappy, or Daddy, placed his thing in my back or on my back." I.D.'s mother indicated I.D. did not use the terms "penis" or "anus" and could not recall specifically when the incident occurred.
Kourtsean Johnson, a CPS investigator, testified that she screened I.D. prior to the forensic interview. I.D. told her that appellant touched her bottom on more than one occasion in 2017 at a house that was located by a lake. I.D. indicated appellant touched her chest, and he but his bottom in her bottom and described his bottom as "his part to pee." I.D. used the term "bottom" to mean both her anus and vagina. She did not solicit any other details from I.D. and did not get any details as to the timing of these events or how many times they occurred.
The charged offenses were alleged to have occurred in May and September of 2019.
Yupit-Martinez testified she interviewed I.D. on September 1, 2021. I.D. was twelve years old at that time. Yupit-Martinez testified as to the specific disclosures I.D. made during the interview, including approximately when, where, and how the assaults took place as well as the sensory details associated with them. She indicated I.D. described in detail an incident that she recalled occurred in the bedroom involving appellant penetrating her anus with his penis after he took off his and I.D.'s pants and positioned I.D. over the bed. She testified about a second incident I.D. described that occurred in the bathroom after she, appellant and K.M. showered involving appellant pulling her down into a sitting position and wanting her to put her hole on his thing. I.D. described the incident as painful. I.D. indicated these instances of abuse occurred when she was ten years old.
At the end of the outcry hearing, the prosecutor argued Yupit-Martinez was the proper outcry witness. The defense argued I.D.'s mother was the proper outcry witness because I.D. disclosed the abuse to her first. The trial court acknowledged that I.D.'s mother may have been first in time, but ruled Yupit-Martinez was the outcry witness stating, "the witness that is able to accurately describe allegations that meet the elements of the indictment is" Yupit-Martinez.
The trial court's ruling is supported by the record. I.D.'s disclosure to her mother did not provide evidence of abuse beyond the general allusion that it occurred. Garcia, 792 S.W.2d at 91. The specifics about the abuse I.D. gave to Yupit-Martinez were more than a general allusion of abuse. See id. Thus, the trial court did not abuse its discretion by designating Yupit-Martinez the outcry witness in both cases.
II. Testimony - Background Information about Abuse
With respect to appellant's complaint about the trial court's ruling on his objections to the scope of Yupit-Martinez's testimony, we review the trial court's ruling for an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). The test for abuse of discretion is whether the court acted without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g). An abuse of discretion occurs when a trial court's decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Id. at 380.
For expert testimony to be admissible, it must be both reliable and relevant. See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). Relevance is a looser notion than reliability and is a simpler, more straight-forward matter to establish. Id. Appellant did not attack Yupit-Martinez's credentials or expertise at trial, but instead asserted her testimony was overly broad, inadmissible and irrelevant. To determine relevance, we ask whether the evidence will assist the trier of fact and is sufficiently tied to the facts of the case. Id. at 438. The expert must tie the facts of the case to the principles that are the subject of his or her testimony. Id.
Yupit-Martinez's testimony was offered to explain the dynamics of child abuse. Her testimony included explanations of grooming, the process of disclosure, delayed outcries, who can be a perpetrator, and how children react when talking about abuse. In addition, she provided an explanation about how autism can impact a forensic interview. Expert testimony on these issues has generally been recognized as helpful to the jury in understanding child sexual abuse cases. See Williams v. State, No. 05-22-01086-CR, 2024 WL 549049, at *4 (Tex. App.-Dallas Feb. 12, 2024, pet. ref'd) (mem. op., not designated for publication) (no abuse of discretion allowing expert testimony explaining anyone can be a perpetrator of child abuse, grooming, delayed outcries, and the process of disclosure); Dennis v. State, 178 S.W.3d 172, 182 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd) (no abuse of discretion admitting expert's opinions on characteristics and dynamics of sexually abused children); Gonzales v. State, 4 S.W.3d 406, 417 (Tex. App.-Waco 1999, no pet.) (expert testimony that child victim exhibits elements or characteristics shown to be common among sexually abused children is relevant and admissible); Vasquez v. State, 819 S.W.2d 932, 935 (Tex. App.-Corpus Christi-Edinburg 1992, pet. ref'd). (expert testimony about sex abuser profiles and manifestation and symptoms of sex abuse is relevant).
Here, Yupit-Martinez explained anyone can be a perpetrator of child sex abuse, including someone in the child's family and someone who is trusted in the family. In her experience, most of the time the perpetrator is someone who is close to the child. Yupit-Martinez went on to discuss "grooming" and explained that it is a pattern of behavior that (1) increases the likelihood of sexual assault happening, (2) reduces the likelihood that the child will tell or be believed, and (3) reduces the risk that the child will resist the sexual assault behavior. She further explained grooming is twofold: grooming of the victim and grooming of the environment to gain access to the child.
Yupit-Martinez also discussed the process of disclosure indicating that it is similar to the grieving process. First, there is denial, then tentative disclosure (testing the water), and then active disclosure. Sometimes a child recants his or her statement and later affirms the early statement of abuse. In making a disclosure, a child may go through all of the steps or through just a few.
Yupit-Martinez further discussed red flags, the importance of sensory and peripheral details, and how children often have a difficult time recalling when an incident may have occurred. She explained that when she is dealing with a child who is reported to be on the autism spectrum, she typically asks the parent where the child is on the spectrum so she can tailor the interview to the child.
The State offered Yupit-Martinez's testimony to explain the dynamics of sexual abuse and its effects on an abused child. Given the accused is I.D.'s stepfather, her testimony concerning perpetrators of these types of crimes and grooming tied the facts of the case to principles she discussed. See Kimberlin v. State, No. 05-18-00018-CR, 2019 WL 1292471, at *5 (Tex. App.-Dallas Mar. 21, 2019, no pet.) (mem. op., not designated for publication) (evidence is relevant if it will assist the trier of fact and is sufficiently tied to the facts). In addition, given the delay in I.D.'s disclosure and her being on the autism spectrum, Yupit-Martinez's testimony concerning the disclosure process, red flags, the importance of sensory and peripheral details and tailoring interviews for children who are on the spectrum likewise tied the facts of the case to the principles she discussed. Id. Thus, her testimony met the "simple requirement that it be helpful" to the jury. Id. at *6. The trial court's decision to overrule appellant's overly broad, inadmissible and irrelevant objections and admit Yupit-Martinez's testimony was not outside the zone of reasonable disagreement and does not constitute an abuse of discretion. We overrule appellant's first issue.
III. Hearsay
In his final issue, appellant asserts the trial court abused its discretion in admitting State Exhibits 17 and 18 and certain testimony of I.D.'s therapist.
A.Standard of Review
We examine a trial court's decision to admit or exclude evidence for an abuse of discretion. Cuadros-Fernandez v. State, 316 S.W.3d 645, 656 (Tex. App.- Dallas 2009, no pet.). A trial court abuses its discretion when its decision falls outside the zone of reasonable disagreement. Id. "Trial courts have broad discretion in their evidentiary rulings and . . . trial courts are usually in the best position to make the call on whether certain evidence should be admitted or excluded." Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We uphold the trial court's ruling on the admissibility of evidence if it is reasonably supported by the evidence and is correct under any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).
B. State Exhibits 17 and 18
State Exhibit 17 contained the prosecutor's notes of I.D.'s testimony concerning the house she lived in, specifically noting the number of bedrooms and to whom the bedrooms were associated and the number of bathrooms and where they were located. State Exhibit 18 contained the prosecutor's notes of I.D.'s testimony concerning where appellant touched her noting the location in the house where incident occurred and the body parts involved, using the exact terms I.D. used. In addition to the charged offenses, Exhibit 18 noted appellant touched I.D.'s front private part with his tongue and put his front private part in I.D.'s mouth in mom's bathroom. Appellant's trial counsel objected to the admission of the exhibits stating:
She's giving testimony, and the jury can remember that. There is a court reporter here that can provide that information. I would object. They can admit it for demonstrative purposes, and I won't object to that.
While not directly stated, it appears appellant's objection was to the cumulative nature of the evidence. The trial court overruled the objection and admitted the exhibits pursuant to Rule 1006 of the Texas Rules of Evidence. Rule 1006 provides:
The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.Tex. R. Evid. 1006. Because Exhibits 17 and 18 are not summaries of voluminous writings, recordings, or photographs, they were not properly admitted under Rule 1006. Assuming, without deciding, the exhibits were not admissible under any other theory of law, we conclude, for the reasons set forth herein, any error in the admission of same did not affect appellant's substantial rights.
A violation of evidentiary rules that results in the erroneous admission of evidence is non-constitutional error. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). The appropriate harm analysis is therefore the one set out in Texas Rule of Appellate Procedure 44.2(b), which dictates that a non-constitutional error that does not affect substantial rights must be disregarded. Tex.R.App.P. 44.2(b); Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008). A substantial right is affected when an error has a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Therefore, a criminal conviction should not be overturned for non-constitutional error if the appellate court, upon examining the record as a whole, has fair assurance that the error did not influence the jury, or had but slight effect. Cobb v. State, 85 S.W.3d 258, 272 (Tex. Crim. App. 2002). We will not reverse for the admission of evidence where substantially similar evidence is introduced elsewhere at trial. See Bourque v. State, 156 S.W.3d 675, 677 (Tex. App.-Dallas 2005, pet. ref'd).
In assessing the likelihood that the jury's decision was adversely affected by any error admitting evidence, we consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the character of the alleged error, and how it might be considered in connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). Here, the content of the exhibits reflect evidence that was already before the jury in the form of I.D.'s testimony. At trial, I.D. described the house she lived in including the number of bedrooms and bathrooms and to whom those rooms belonged. Exhibit 17 simply reflected the same. In addition, I.D.'s testimony established where the assaults occurred, and which body parts were involved. In addition, I.D. testified, without objection, about instances of oral sex, which were not part of the charged offenses. I.D.'s testimony was consistent with the information she provided to Yupit-Martinez during her forensic interview and Yupit-Martinez testified regarding same. Accordingly, the information reflected in Exhibits 17 and 18 was before the jury, and the exhibits were not specifically addressed again after they were admitted into evidence. These exhibits were merely cumulative of other evidence properly in the record and there was overwhelming evidence properly received of appellant's guilt. Accordingly, we conclude the complained-of exhibits did not influence the jury, or had but a slight effect, and appellant's substantial rights were not affected by their admission. See Consuelo v. State, No. 05-07-00848-CR, 2008 WL 3578594, at *5 (Tex. App.-Dallas Aug. 15, 2008, pet. ref'd) (not designated for publication); Stevens v. State, 234 S.W.3d 748, 784-85 (Tex. App.-Fort Worth 2007, no pet.).
C. Testimony of I.D.'s Therapist
As part of his final issue, appellant contends the trial court abused its discretion in overruling his hearsay objection to the prosecutor's question to I.D.'s therapist, "Did [I.D.] have any feelings with regard to who is responsible for abuse - - the abuse that she endured?" The prosecutor responded to the objection stating the testimony she sought to elicit was for the purpose of medical treatment and therapy. The witness went on to respond:
Yes. There are times where she felt she might be responsible for it continuing; for not telling earlier. Towards the end of our treatment, she was able to say that her stepdad was completely responsible for the abuse and nothing was her fault.
Through this testimony, appellant urges the trial court improperly permitted I.D.'s therapist to establish I.D. identified appellant as the person completely responsible for the abuse.
Hearsay-a statement, other than one made by the declarant while testifying at trial or a hearing, offered in evidence to prove the truth of the matter asserted-is not admissible except as provided by statute or the rules of evidence or by other rules prescribed pursuant to statutory authority. Tex. R. Evid. 801(d), 802. Once the opponent of hearsay evidence makes the proper objection, it becomes the burden of the proponent of the evidence to establish that an exception applies that would make the evidence admissible in spite of its hearsay character. Taylor v. State, 268 S.W.3d 571, 578-79 (Tex. Crim. App. 2008). One such exception is embodied in Rule 803(4), which provides:
Statements made for the purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment" are admissible as an exception to the hearsay rule.Tex. R. Evid. 803(4).
The out-of-court statements of child-abuse victims identifying the perpetrator of the abuse to psychologists, therapists, licensed professional counselors, and even under some circumstances social workers, have all been admitted into evidence under Rule 803(4), so long as the statement at issue otherwise met the criteria of the rule. Taylor, 268 S.W.3d at 584. In order to meet the criteria of Rule 803(4), the proponent of the evidence must satisfy a two-pronged test. First, the proponent must establish the declarant was aware that the statement was made for the purpose of medical diagnosis or treatment, and that proper diagnosis or treatment depends upon the veracity of such statement. Id. at 588-89. Second, the proponent must establish the statement was actually pertinent to diagnosis or treatment. Id. at 588-89, 591.
With respect to the first prong of the test, the court of criminal appeals has recognized that reclining on a therapist's or psychiatrist's couch is not quite the same as sitting in the emergency room immediately after suffering an injury or on the physician's cold examination table in the interest of diagnosing and curing some exigent disease or ailment. Id. at 589. "In the latter contexts, it seems only natural to presume that adults, and even children of a sufficient age or apparent maturity, will have an implicit awareness that the doctor's questions are designed to elicit accurate information and that veracity will serve their best interest." Id. But this tacit presumption is less compelling in the therapist's office. Id. at 590. It is not always so readily apparent in the mental-health context that truth telling is vital. Id. Thus, in the context of statements made by a child to a therapist, "it is incumbent upon the proponent of the hearsay exception to make the record reflect both (1) that truth-telling was a vital component of the particular course of therapy or treatment involved, and (2) that it is readily apparent that the child-declarant was aware that this was the case." Id.
With respect to the second prong of the test, we note that not every statement made in the course of mental-health treatment will be admissible just because they are likely to be truthful. Id. at 590-91. The proponent of hearsay evidence must show that the particular statement at issue is pertinent to treatment. Id. at 591.
I.D.'s therapist testified that she was counseling I.D. to address ongoing trauma symptoms and help her normalize talking about the abuse. She indicated that she used trauma-focused cognitive behavioral therapy to address the abuse and to teach coping mechanisms to deal with the resulting trauma. I.D.'s therapist did not testify I.D. understood that truthfulness about her feelings and the identity of the perpetrator was important to the efficacy of her treatment. I.D. did not testify at all about her therapy. There is nothing in the record that makes it readily apparent that I.D. understood the identity of her assailant was important to the efficacy of her treatment for the trauma she endured. We cannot presume this predicate fact without effectively relieving the proponent of the hearsay evidence of its burden to establish the existence of a valid exception of the hearsay rule. We conclude the trial court abused its discretion in admitting the complained-of statement pursuant to Rule 803(4).
The error here is not of constitutional dimension. A non-constitutional error that does not affect substantial rights must be disregarded. Tex.R.App.P. 44.2(b); Taylor, 268 S.W.3d at 592. A criminal conviction should not be overturned for non-constitutional error if the appellate court, upon examining the record as a whole, has fair assurance that the error did not influence the jury, or had but slight effect. Cobb, 85 S.W.3d at 272.
Here, appellant's identity was not at issue. The issue at trial was whether I.D. fabricated stories of abuse. Accordingly, we conclude the trial court's error in admitting the objectionable portion of I.D.'s therapist's testimony did not have a substantial or injurious effect or influence on the jury in reaching its verdict. The error was harmless.
Next, appellant contends the cumulative error of allowing the overly broad testimony of Yupit-Martinez, the improper comments of Detective Greene alluding to other crimes appellant could have been charged with but was not, and the REACH nurse's comment about having met I.D. prior to her physical examination of I.D. rendered the trial fundamentally unfair. Appellant has since withdrawn his complaint with respect to Detective Greene's and the REACH nurse's testimony and we have rejected appellant's complaint with respect to the testimony of Yupit-Martinez; thus, there is no support for appellant's cumulative error assertion.
We overrule appellant's third and final issue.
Conclusion
We affirm the trial court's judgments.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.