Lavoy Woods v. State

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In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-17-00367-CR
      ___________________________

        LAVOY WOODS, Appellant

                     V.

           THE STATE OF TEXAS


 On Appeal from Criminal District Court No. 2
            Tarrant County, Texas
         Trial Court No. 1462051D


  Before Sudderth, C.J.; Meier and Kerr, JJ.
Memorandum Opinion by Chief Justice Sudderth
                          MEMORANDUM OPINION

      In three points, Appellant Lavoy Woods appeals his conviction for aggravated

sexual assault of a child under the age of six. See
Tex. Penal Code Ann. § 22.021
(a)(2)(B), (f)(1) (West Supp. 2018). We affirm.

                                    Background

I. Amy’s outcry of abuse

      Woods is the father of Amy,1 the complainant in this case. He and Amy’s

mother, Mariah, married in November 2006, a month after Amy’s birth, but separated

in late 2012 and divorced in 2013. In 2016, Mariah received a Facebook message

from Woods’s niece, Kendra, that Woods had sexually abused her when the family

was living with Kendra’s family in 2008 in Ohio.

      Concerned, Mariah asked Amy—who was nine at the time—if anyone had ever

touched her inappropriately, to which Amy replied, “No.” But according to Mariah,

when she then asked Amy if anyone had ever made her do anything inappropriate or

uncomfortable, Amy replied, “Yes,” and told Mariah that Woods “had made her put

her lips on him and then lick him.” Mariah testified that Amy said Woods made her

“grab him with both hands and stroke him” and that he made her lick his “nina”—a




      1
       We refer to the complainant and family members by aliases in an attempt to
protect their privacy. See McClendon v. State,
643 S.W.2d 936
, 936 n.1 (Tex. Crim. App.
[Panel Op.] 1982).


                                           2
term Amy used to refer to Woods’s penis. Amy told Mariah that it happened in the

bedroom Woods and Mariah shared in the Fort Worth home they purchased in 2012.

II. The police investigation

      Mariah immediately called the police, who began an investigation.

      A. Forensic interview with Lindsey Dula

      In May 2016, Lindsey Dula conducted a forensic interview with Amy, and a

redacted video recording of that interview was admitted into evidence at trial. In the

redacted version, Amy described the abuse to Dula:

      Dula: So, talk about what would happen when your mom was at work.
      Amy: Like, I was just watching TV in my room and he said, “[Amy],
      come here,” and then I came there and then he said—
      Dula: Where’s there?
      Amy: Into my dad’s room—my mom and dad’s room. And then he
      said, “Do you want to have some fun?” and I said, “Yes,” and he said,
      “Ok, come here,” and then he started to take off his pants. I said,
      “What are you doing?” and he said, “Just come here and lick my
      thing,[2]” and I said, “Why?” and he said, “Just do it.” And I—I did it.
      [Be]cause I didn’t want to be rude or anything [be]cause I have to obey
      my parents. So I did it. And then the next day, I told my mom while he
      wasn’t there.
      Dula: Ok, then what happened?
      Amy: And then she said, “Ok, I’ll deal with it and I’ll make sure he
      doesn’t do anything else but if he does, let me know.”




      2
       At this point in the video, Amy gestured toward her private area.


                                          3
      Later in the interview, Amy described the incident again and with more details.

Amy told Dula that Woods said, “[Amy], come here,” and that he was lying down on

his bed with his hands behind his head when Amy came into his room, and then he

sat up. When Amy responded, “What’s wrong?” Woods asked her, “Do you want to

have some fun?” to which Amy replied, “I do,” and asked, “What are we going to

do?” At that point, according to Amy, Woods stood up, went to the bathroom and

urinated, took off his pants, lay down on the bed, and spread his legs. Amy described

how Woods only had on a plain, white t-shirt at that point and that, when she asked,

“What are you doing?” he said, “Come here and lick this.” Amy continued to

describe to Dula how she licked Woods’s penis and how, while it was happening,

Woods said things like “Oh that feels good,” “I wish your mom would do this,” and

“Just keep going.” Amy also described for Dula how Woods was “moving around”

on the bed and pushing his hands against the furniture. She described Woods’s penis

as looking like a “hot dog,” as brown with lots of wrinkles, and as having a little hole

in it. Multiple times during the interview, Amy gestured between her own legs when

describing or discussing Woods’s penis. According to Amy, Woods eventually told

her to stop, put his pants back on, told Amy, “Do whatever you want to do now,”

and went back to watching TV.

      In the interview, Amy could not remember when the incident happened or

exactly how old she was at the time, but she told Dula that “it was a long, long time

ago” and that the last time she saw Woods was when she was five.

                                           4
       Amy said that this was the only time Woods told her to lick him, because she

told Mariah the day after the incident. And when Dula asked Amy if Woods had ever

touched her private parts or put his mouth on her private parts, Amy replied, “No.”

       B. SANE examination with Stacy Henley

       Stacy Henley, a Sexual Assault Nurse Examiner (SANE), examined Amy. At

trial, Henley testified that Amy said,

       My dad hurt me all the time when I was little, all the way up until I was
       five. My dad left me when I was five. He thought it was fun for me
       taking off my pants and whooping me. My dad made me lick his middle
       part. He said that feels good, oh, keep going. He told me to - - he told
       me not to tell but I told my mom.

According to Henley, Amy said the forced oral sex only happened once.

       C. Woods’s arrest and indictment

       Woods was charged with the aggravated sexual assault of Amy by forcing her

mouth to contact his penis when Amy was younger than six years old.

III. The trial

       A. Amy’s testimony

       Amy was 11 years old when she testified at trial that Woods made her “lick his

middle part” one day. Amy testified that she was in her bedroom when Woods called

her to his bedroom, so she went to his room. Amy remembered that he took his

pants and underwear off but could not remember what kind of shirt he was wearing.

Amy described what happened next for the jury: “I said, What? And then he was like,

Come here. And then I’m like, What? Then he said, come here and get on your

                                          5
knees, and I got on my knees. And then he got on the bed and laid backwards and

made me lick his middle part.” She described Woods’s penis as looking “[l]ike a

stick.” She did not remember if Woods said anything to her during the act.

        Amy also could not remember when she told Mariah about the incident but did

think the incident happened when she was “about five or six or four.”

        During cross-examination, Woods’s counsel asked Amy if she had ever told

Dula that she ran into her room and locked her door after Woods asked her to lick

him. Amy responded that she did do that, but that it was “not about him licking - -

not about [Amy] licking him.” On redirect, the prosecutor asked what that was about

and Amy clarified, “About him licking me,” and that she did that because Woods

wanted to lick her. Upon follow-up, she said that Woods licked her, although she

could not remember when but knew it was not the same day that he forced her to lick

him.3

        B. Kendra’s testimony

        Kendra, who was 16 by the time of trial, testified to Woods’s abuse of her. She

recalled meeting Woods when she was five and she and her older sister were staying at

her grandfather’s house while her parents were at work. Kendra testified that Woods

told Kendra and her sister to take their clothes off, except for the t-shirts they had on

(which were Woods’s), and then showed them his penis. Kendra’s mother testified

       Mariah testified that the only incident that Amy had disclosed to her was the
        3

incident when Woods forced Amy to perform oral sex on him.


                                           6
that when she arrived to pick Kendra and her sister up that day, she was alarmed

when she saw that both of them were wearing only t-shirts and the rest of their

clothes were lying on the floor.

      Kendra testified that Woods’s abuse of her escalated when he moved into the

house where Kendra lived with her parents. She recalled an instance when she was

seven and Woods made her watch pornographic videos, and she testified that he

regularly made her put her hands on his penis. Finally, Kendra testified that Woods

performed oral sex on her more than five times and that he forced her to have vaginal

and anal intercourse more than once. According to Kendra, Woods told her, “[I]t’s

okay because we’re family.”

      C. Expert testimony by Dr. Richard Schmitt

      Woods’s defense included testimony by Dr. Richard Schmitt, a psychologist.

Dr. Schmitt testified that he reviewed the recording of Dula’s forensic interview of

Amy, read written statements of Mariah and Kendra, and reviewed “police

information.”

      Dr. Schmitt expressed several concerns about Amy’s outcry of abuse:

   • Amy’s age at the time of her outcry—she was nine—was concerning to
     Dr. Schmitt because children are “very suggestible” at that age, making it
     important for the interviewer to be “very careful” to avoid repetitive or leading
     questions. He also testified that children “do not have very good memory
     below age seven.”

   • Mariah, after Amy denied being touched inappropriately, asked the question a
     different way, at which point Amy disclosed the incident when Woods forced


                                          7
      her to perform oral sex. According to Dr. Schmitt, “many children will start to
      make up a story” when they are subjected to repetitive questioning.

   • The four-year delay between the time when the incident took place and when
     Amy outcried was concerning to Dr. Schmitt.

   • Amy’s demeanor during the forensic interview with Dula concerned
     Dr. Schmitt, specifically her lack of “negative emotion,” tears, or anger.

   • In Dr. Schmitt’s opinion, Dula appeared at times to be overly invested in the
     outcome of the interview.

   • Dr. Schmitt noticed certain inconsistencies in Amy’s statements during the
     forensic interview.

   • In Dr. Schmitt’s opinion, Amy’s body language “did not suggest emotional
     pain” and neither did her words. He noted, “[T]here were no other nonverbal
     indicators such as tears,” and described her posture as “very casual and
     relaxed.”
      The State recalled Dula to the stand to rebut Dr. Schmitt’s testimony. Dula

explained the research-based methodology she used with Amy and that she had used

over the course of the 7,000 forensic interviews she had conducted in her career.

Dula did not consider Mariah’s questions to Amy as indicative of coaching. Dula

explained that the absence of any negative or sad demeanor on Amy’s part did not

necessarily mean that she was not a victim of sexual abuse. Dula testified that

children react to things differently and that, in her experience, “most often kids

actually don’t have emotion because they have had to deal with their abuse” over

time, especially when—as here—there is a delay between the abuse and the time the

child makes an outcry. She also explained that a child under the age of seven could

remember a remarkable event like sexual abuse.


                                         8
      D. The verdict

      The jury found Woods guilty of aggravated sexual assault and found that Amy

was younger than six years old at the time of the assault. The jury assessed a sentence

of 45 years, and the trial court sentenced Woods accordingly.

                                     Discussion

      Woods brings three points on appeal. His first point challenges the sufficiency

of the evidence supporting his conviction. His second and third points relate to the

admission of evidence. In his second point, Woods argues that the trial court erred by

admitting evidence of a prior conviction during the punishment phase. In his third

point, Woods argues that the trial court erred by admitting and permitting the State to

show the jury the redacted forensic interview of Amy.

I. Sufficiency of the evidence

      In challenging the sufficiency of the evidence, Woods takes issue with Amy’s,

Dula’s, and Henley’s testimony at trial. In his estimation, Amy’s testimony was

“ambiguous” and “lacked any credibility” and Dula’s and Henley’s testimony were so

weak as to amount to no more than a scintilla of evidence. We disagree.

      A. Standard of review

      In our due process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319
,
99 S. Ct.
9
2781, 2789 (1979); Jenkins v. State,
493 S.W.3d 583, 599
(Tex. Crim. App. 2016). This

standard gives full play to the responsibility of the trier of fact to resolve conflicts in

the testimony, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts. Jackson,
443 U.S. at 319
,
99 S. Ct. at 2789
; Jenkins,
493 S.W.3d

at 599
.

       The trier of fact is the sole judge of the weight and credibility of the evidence.

See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Blea v. State,
483 S.W.3d 29, 33
(Tex. Crim. App. 2016). Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. See Montgomery v. State,
369 S.W.3d 188, 192
(Tex.

Crim. App. 2012).      Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the light

most favorable to the verdict. Murray v. State,
457 S.W.3d 446, 448
(Tex. Crim. App.),

cert. denied,
136 S. Ct. 198
(2015). We must presume that the factfinder resolved any

conflicting inferences in favor of the verdict and defer to that resolution. Id. at 448–

49; see Blea,
483 S.W.3d at 33
.

       To determine whether the State has met its burden under Jackson to prove a

defendant’s guilt beyond a reasonable doubt, we compare the elements of the crime as

defined by the hypothetically correct jury charge to the evidence adduced at trial. See

Jenkins,
493 S.W.3d at 599
; Crabtree v. State,
389 S.W.3d 820, 824
(Tex. Crim. App.

2012) (“The essential elements of the crime are determined by state law.”). Such a

                                            10
charge is one that accurately sets out the law, is authorized by the indictment, does

not unnecessarily increase the State’s burden of proof or restrict the State’s theories of

liability, and adequately describes the particular offense for which the defendant was

tried. Jenkins,
493 S.W.3d at 599
. The law as authorized by the indictment means the

statutory elements of the charged offense as modified by the factual details and legal

theories contained in the charging instrument. See id.; see also Rabb v. State,
434 S.W.3d

613, 616
(Tex. Crim. App. 2014) (“When the State pleads a specific element of a penal

offense that has statutory alternatives for that element, the sufficiency of the evidence

will be measured by the element that was actually pleaded, and not any alternative

statutory elements.”).

      We must consider all the evidence admitted at trial, even improperly admitted

evidence, when performing a sufficiency review. Jenkins,
493 S.W.3d at 599
; Moff v.

State,
131 S.W.3d 485
, 489–90 (Tex. Crim. App. 2004).

      B. Application

      To obtain a conviction for aggravated sexual assault of a child, the State had to

show that Woods caused Amy’s mouth to contact his sexual organ and that Amy was

under the age of fourteen.
Tex. Penal Code Ann. § 22.021
(a).

      We disagree with Woods’s characterization of Amy’s testimony as

“ambiguous.” She testified that Woods forced her to lick his “middle part” when she

was “about five or six or four” years old. The jury also had the benefit of viewing

portions of the forensic interview with Dula in which Amy described the incident in

                                           11
graphic detail, including Woods’s mannerisms during the incident, statements he

made during the incident, what he was wearing and not wearing, and what his penis

looked like. Her testimony alone was sufficient to support the jury’s conviction of

Woods. See id.; Tex. Code Crim. Proc. Ann. art. 38.07 (West Supp. 2018) (providing

that a conviction for aggravated sexual assault is supportable on the uncorroborated

testimony of a child complainant); Connell v. State,
233 S.W.3d 460, 466
(Tex. App.—

Fort Worth 2007, no pet.) (mem. op.) (holding complainant’s testimony alone was

sufficient to support conviction for indecency with a child).

      As for Woods’s assertion that Amy’s testimony lacked credibility, that was

within the jury’s sole province to determine. Bowden v. State,
628 S.W.2d 782, 784
(Tex. Crim. App. 1982) (op. on reh’g) (explaining that the members of the jury are

“the judges of the facts, the credibility of the witnesses, and the weight to be given to

the testimony”). The jury clearly disagreed with Woods’s arguments and we will not

disturb their decision in this respect. See Brooks v. State,
323 S.W.3d 893, 911
(Tex.

Crim. App. 2010) (rejecting the argument that reviewing courts can sit as the

“thirteenth juror” by weighing the credibility of the evidence). We therefore overrule

Woods’s first point.

II. Admission of evidence

      Woods’s second and third points argue that the trial court erred by admitting

certain evidence. In his second point, Woods argues that State’s exhibits 6, 7, 8, and

9, records of an extraneous offense, were inadmissible during the punishment phase

                                           12
because they were not sufficiently linked to Woods. In his third point, Woods argues

that the trial court should not have admitted the video recording of Dula’s forensic

interview of Amy during the guilt or innocence phase.

      We review the admission of evidence for an abuse of the broad discretion

afforded to trial courts. Winegarner v. State,
235 S.W.3d 787, 790
(Tex. Crim. App.

2007); Hammons v. State,
239 S.W.3d 798, 806
(Tex. Crim. App. 2007). So long as the

trial court’s evidentiary ruling falls within the “zone of reasonable disagreement” and

was correct under any applicable theory of law, we will uphold the ruling. Winegarner,
235 S.W.3d at 790
.

      A. Evidence of a prior attempted-rape conviction

      During the punishment phase, the State offered and the trial court admitted

four exhibits reflecting a Lucas County, Ohio conviction of attempted rape against

Lavoy Wendell Woods in 1991.         State’s exhibit 6 is a certified copy of a 1990

indictment from Lucas County, Ohio, against Lavoy Wendell Woods for forcing a girl

under the age of 13 to engage in sexual conduct. State’s exhibit 7 is a certified copy of

the trial court’s docket from the same Ohio proceedings against Lavoy Wendell

Woods. State’s exhibit 8 is a certified copy of a plea agreement signed by Lavoy

Wendell Woods, in which he withdrew his former not guilty plea and pleaded guilty to

a lesser-included offense of attempted rape. State’s exhibit 9 is a certified copy of a

1991 judgment of conviction against Lavoy Wendell Woods reflecting that he pleaded



                                           13
guilty to attempted rape, an aggravated second-degree felony, and was sentenced to

“not less than seven, nor more than fifteen” years’ imprisonment.

       Evidence of a prior conviction is admissible during the punishment phase.

Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2018). But to be

admissible, the evidence of a prior conviction must be linked to the defendant.

Flowers v. State,
220 S.W.3d 919, 921
(Tex. Crim. App. 2007). In other words, the State

must bring other evidence—independent of a certified copy of the judgment of

conviction—that shows that the defendant is the same person named therein. Davis v.

State,
268 S.W.3d 683, 715
(Tex. App.—Fort Worth 2008, pet. ref’d). There are

several ways to carry this burden. One way is to provide “testimony of a witness who

personally knows the defendant and the fact of his prior conviction and identifies

him.” Beck v. State,
719 S.W.2d 205, 209
(Tex. Crim. App. 1986).

       Woods argues that the State did not sufficiently link the 1991 conviction to

him.

       Mariah testified during the punishment phase to her knowledge of Woods’s

prior conviction. Mariah testified that Woods disclosed the conviction when they

were discussing an upcoming move out of state. She recalled Woods telling her that

he had served 15 years in prison for a sex crime and that the conviction occurred in




                                          14
Lucas County, Ohio, when he was 23 years old.4              She went on to recount his

description of the crime:

         He said that what had happened was the girl was 17 years old and he was
         dating her sister and their relationship didn’t work out. And the sister
         got angry and asked her little sister to say that he touched her breast, and
         that he got a tougher sentence because the girls were daughters of a
         judge, and that it was for attempted rape but he never raped anyone.

         Mariah testified that Woods told her that he had served 15 years in an Ohio

prison and that he was on probation for 10 years after that and was required to

register as a sex offender. She recalled seeing paperwork related to the conviction and

a time when he contacted his Ohio probation officer. She also remembered taking

Woods to register as a sex offender yearly and any time they moved, and she

remembered that Woods was required to keep a card on him all the time that noted

his sex offender status.

         Mariah’s detailed testimony was sufficient to demonstrate her personal

knowledge of Woods’s 1991 conviction for attempted rape and to support the

admission of State’s exhibits 6, 7, 8, and 9. See
id. at 209
. The trial court therefore did

not abuse its discretion in admitting those exhibits, and we overrule Woods’s second

point.




       Woods would have been 23 years old in February 1991 when he was
         4

convicted.


                                             15
      B. Dula’s forensic interview of Amy

      Woods argues in his third point that the trial court erred by admitting the

redacted video recording of Dula’s forensic interview of Amy.

      On the second day of trial, outside the presence of the jury, the State informed

the trial court of its intent to offer the recording into evidence “based on the Defense

opening statement and their cross-examination of [Amy and Mariah].” The State

argued that Woods’s counsel’s opening statement laid out a defense that included

emphasizing Amy’s inconsistent statements during the forensic interview and their

intent to call Dr. Schmitt to testify to children’s motivations for fabricating sexual

abuse allegations. The State argued that the video recording of the forensic interview

was admissible as evidence of her “prior consistent statements.” The trial court

agreed that Woods’s counsel “did open the door when [he] said that there were going

to be inconsistent statements” and admitted the redacted video recording.

      On appeal, the State offers the additional argument that the forensic interview

recording was admissible under the rule of optional completeness. We agree in part,

that a small portion of the redacted video recording was admissible under the rule of

optional completeness. However, except for that small portion of the recording, we

agree with Woods that the remainder of the recording was improperly admitted. But

because we do not consider the trial court’s error in admitting the video to be

harmful, we will overrule Woods’s third point.



                                          16
             1. Optional completeness

      Hearsay is generally inadmissible. Tex. R. Evid. 802. The rule of optional

completeness is a recognized exception to that rule:

      If a party introduces a part of an act, declaration, conversation, writing,
      or recorded statement, an adverse party may inquire into any other part
      on the same subject. An adverse party may also introduce any other act,
      declaration, conversation, writing, or recorded statement that is
      necessary to explain or allow the trier of fact to fully understand the part
      offered by the opponent.

Tex. R. Evid. 107; see also Walters v. State,
247 S.W.3d 204
, 217–18 (Tex. Crim. App.

2007) (“This rule is one of admissibility and permits the introduction of otherwise

inadmissible evidence when that evidence is necessary to fully and fairly explain a

matter ‘opened up’ by the adverse party.”).

      It is generally recognized that when a portion of a videotaped conversation is

inquired into by the defense, the State is entitled to offer any other portion of that

conversation that is necessary to make the conversation fully understood. Mick v.

State,
256 S.W.3d 828, 831
(Tex. App.—Texarkana 2008, no pet.) (citing Credille v.

State,
925 S.W.2d 112, 117
(Tex. App.—Houston [14th Dist.] 1996, pet. ref’d)). Thus,

under the rule of optional completeness, the State is entitled to admission of portions

of the complainant’s videotaped statement when (1) the defense attorney asks

questions concerning some of the complainant’s statements on the videotape, (2) the

defense attorney’s questions leave the possibility of the jury’s receiving a false

impression from hearing only a part of the conversation, with statements taken out of


                                          17
context, and (3) the videotape is necessary for the conversation to be fully

understood. Credille,
925 S.W.2d at 117
; see also Sauceda v. State,
129 S.W.3d 116, 123
(Tex. Crim. App. 2004) (op. on reh’g) (recognizing Credille and noting that the defense

in Credille pointed to specific statements by the complainant during a recorded interview

“which, taken out of context, could indeed have created ‘the possibility of the jury

receiving a false impression’”).

      Woods’s counsel’s strategy in cross-examining Amy was to impeach her

credibility by pointing out inconsistencies between her trial testimony and her

statements during the forensic interview, especially her assertion at trial that Woods

had performed oral sex on her. In doing so, Woods’s counsel misrepresented a

statement made by Amy during the forensic interview by suggesting that Amy told

Dula that she had run into her room and locked the door one time after Woods asked

her to lick him. But defense counsel had it backwards.

      In the interview Amy told Dula that she had run to her room and locked the

door after Woods had offered to perform oral sex on Amy. Amy told Dula,

      He said, “Do you want me to do it to you?” and I said, “No,” and he
      said, “Just do it!” and I said, “I don’t want to!” So I ran to my room and
      locked the door so he couldn’t do it. And then when he said, “Ok, I
      won’t do it,” I unlocked the door and started watching TV and he
      walked in there and started saying, “I’m sorry.”

      Yet, on cross-examination, defense counsel urged otherwise:

      Q. . . . Do you remember telling Lindsey - - again, the lady in the room
      - - that your father asked you to come into the room and asked you to


                                           18
do something, that you said no and you went and locked yourself in your
room? Do you remember that?
      Do you want me to ask the question differently?
      A. Yes, sir.
       Q. Okay. Do you recall when you were looking at that little
recording of you and Lindsey that there was a time on there where you
told Lindsey that your father asked you to perform an act, you said no
and you ran into your room and locked the door? Do you remember
saying that?
      A. I don’t remember saying that. I just don’t remember what he
asked me to do.
      Q. Okay. Well, make sure - - I’ll refresh your memory a little bit.
      There was a time when apparently your father asked you to lick
him like you described and you said, No, I won’t do it. You ran into
your room and you locked the door. Do you remember that?
       A. I remember saying no and then locked myself in the room, but
I don’t remember him saying it because - - well, yes, I do remember but
not about him licking - - not about me licking him.
      Q. Okay. I’m confused then. So you do remember going and
locking yourself in your room, right?
      A. Yes, sir.
      Q. And eventually you came out of your room and you said
nothing happened. Do you remember saying that - -
      A. Yes.
      Q. - - nothing happened between you and your father, right?
      A. Yes. Yes, sir.




                                   19
After the State attempted to clarify Amy’s statements to Dula on redirect, Woods’s

defense counsel doubled-down, again creating the false impression that Amy had said

the opposite:

      [Q.] You just said when [the prosecutor] was asking you a question
      about the incident where you locked yourself in your room, right?
                A. Yes, sir.
             Q. Okay. And you told her that was because your dad wanted to
      lick you, do you remember saying that to her?
                A. Yes, sir.
            Q. But isn’t it true you told Ms. Dula that’s not what happened.
      It was because he asked you to lick him that one time; do you
      remember?
                ....
            . . . You told Lindsey, the lady in the little room, that that was in
      response to your father asking you to lick him, not the other way
      around?
                A. It’s the other way around.
            Q. But did you - - did you tell Lindsey it was the other way
      around?
                A. I don’t remember saying that.
                Q. Okay. Is it possible you did?
                A. Maybe, but I don’t remember that.

      The rule of optional completeness entitled the State to clarify defense counsel’s

suggestion that Amy told Dula she had run away from Woods when he asked her to

lick him by introducing into evidence the clarifying portions of the interview in



                                            20
question. Tex. R. Evid. 107. Thus, that portion of the recorded interview in which

Amy told Dula that she had run away from Woods when he asked to lick her was

admissible, and the trial court did not err by admitting that portion of the recorded

interview into evidence. See Tovar v. State,
221 S.W.3d 185, 191
(Tex. App.—Houston

[1st Dist.] 2006, no pet.). We therefore overrule Woods’s third point as it relates to

this portion of the recorded forensic interview.

             2. Recent fabrication

      But the rule of optional completeness goes only so far. Tex. R. Evid. 107

(permitting only such evidence which is “necessary to explain or allow the trier of fact

to fully understand the part offered by the opponent”). Just because defense counsel

opened the door to the admission of a small portion of the forensic interview does

not render the entire interview admissible. Sauceda,
129 S.W.3d at 123
(rejecting the

State’s argument “that the ‘opening of the door’ would require the automatic

admission of the entire videotape” as being “completely without support”). The State

does not explain how the remainder of Woods’s counsel’s questions created any false

impressions, nor can we discern any such false impressions in our review of the

record. The rule of optional completeness therefore does not apply to allow the

admission of the rest of the video.

      At trial, the State argued that the redacted forensic interview recording was

admissible under rule 801(e)(1)(B).     Rule 801(e)(1)(B) allows the admission of a

witness’s prior consistent statement under three limited circumstances:           when

                                          21
“offered to rebut an express or implied charge that the declarant recently fabricated

[her testimony] or acted from a recent improper influence or motive.” Tex. R. Evid.

801(e)(1)(B). At the time of the State’s proffer, the State offered the video recording

to rebut the defense’s charge of “fabrication.” But in so doing, the State wholly

ignored the temporal component of the rule, i.e., that the alleged fabrication be of

recent origin.

       As the United States Supreme Court explained in discussing the federal

counterpart to this rule, “Prior consistent statements may not be admitted to counter

all forms of impeachment or to bolster the witness merely because she has been

discredited.” Tome v. United States,
513 U.S. 150, 157
,
115 S. Ct. 696, 701
(1995). The

temporal requirement is important:

       [T]he forms of impeachment within the Rule’s coverage are the ones in
       which the temporal requirement makes the most sense. Impeachment
       by charging that the testimony is a recent fabrication or results from an
       improper influence or motive is, as a general matter, capable of direct
       and forceful refutation through introduction of out-of-court consistent
       statements that predate the alleged fabrication, influence, or motive. A
       consistent statement that predates the motive is a square rebuttal of the
       charge that the testimony was contrived as a consequence of that
       motive.
Id. at 158
,
115 S. Ct. at 701
. As the Court has explained, for prior consistent

statements to be admissible, (1) the declarant must testify at trial and be subject to

cross-examination; (2) there must be an express or implied charge of recent fabrication

or improper influence or motive of the declarant’s testimony by the opponent; (3) the

proponent must offer a prior statement that is consistent with the declarant’s

                                          22
challenged in-court testimony; and, (4) the prior consistent statement must be made

prior to the time that the supposed motive to falsify arose. Hammons,
239 S.W.3d at

804
(citing Tome, 513 U.S. at 156–58, 115 S. Ct. at 700–01).

       The court of criminal appeals has likewise instructed us that “the rule cannot be

construed to permit the admission of what would otherwise be hearsay any time a

witness’s credibility or memory is challenged. Were that true, mere cross-examination

would always turn the prior consistent statement into non-hearsay.”
Id. at 805
(citations omitted).

       Woods’s counsel did not imply that Amy recently fabricated her statements.

Rather, he merely questioned her recollection as to certain statements she made to

Dula in the interview, including: (1) whether she told Dula that she reported the

incident to her mother the morning after it took place; (2) whether she told Dula that

Woods asked her to lick him only one time; (3) whether she told Dula that Woods

was not wearing underwear at the time of the incident; and (4) whether Amy told

Dula about an incident at school with a male classmate.

       Woods’s trial strategy was largely focused upon convincing the jury that Amy

fabricated the entire offense from the beginning, not that she changed her story later

on, which is the situation to which rule 801(e)(1)(B) is intended to apply. See Tome,
513 U.S. at 158
,
115 S. Ct. at 701
; Hammons,
239 S.W.3d at 804
; see also Klein v. State,
273 S.W.3d 297
, 316–17 (Tex. Crim. App. 2008) (holding prior consistent statements

of abuse by child complainant were admissible when child claimed during her

                                          23
testimony that her allegations of abuse were “improperly influenced by the State’s

trickery in questioning her”).    The trial court therefore abused its discretion by

admitting the entire redacted forensic interview recording.

             3. Harmless error

      Having found error, we must conduct a harm analysis to determine whether the

error calls for reversal of the judgment. Tex. R. App. P. 44.2. Because the erroneous

admission of evidence is not constitutional, we apply rule 44.2(b) and disregard the

error if it did not affect appellant’s substantial rights. Tex. R. App. P. 44.2(b); see

Mosley v. State,
983 S.W.2d 249, 259
(Tex. Crim. App. 1998) (op. on reh’g), cert. denied,
526 U.S. 1070
(1999). A substantial right is affected when the error had 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) (citing Kotteakos v. United States,
328 U.S. 750,

776
,
66 S. Ct. 1239, 1253
(1946)). Conversely, an error does not affect a substantial

right if we have “fair assurance that the error did not influence the jury, or had but a

slight effect.” Solomon v. State,
49 S.W.3d 356, 365
(Tex. Crim. App. 2001); Johnson v.

State,
967 S.W.2d 410, 417
(Tex. Crim. App. 1998).

      In making this determination, we review the record as a whole, including any

testimony or physical evidence admitted for the jury’s consideration, the nature of the

evidence supporting the verdict, and 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). We may also consider the jury instructions,

                                           24
the State’s theory and any defensive theories, whether the State emphasized the error,

closing arguments, and even voir dire, if applicable.
Id.
at 355–56.

      Error in the admission of evidence is generally considered harmless when other

properly admitted evidence provides the same facts to the jury. Land v. State,
291

S.W.3d 23, 29
(Tex. App.—Texarkana 2009, pet. ref’d) (“In situations where a video

recording is improperly admitted, yet the recording is cumulative of the victim’s

properly admitted live testimony on the same issue, courts often disregard the error,

reasoning that it could not have affected the appellant’s substantial rights.”). In Matz

v. State,
21 S.W.3d 911
, 912–13 (Tex. App.—Fort Worth 2000, pet. ref’d), this court

held in considering a conviction for aggravated sexual assault of a child that the

admission of a videotape of the child complainant was harmless error because it

essentially repeated the child’s in-court testimony and that of the doctor who

performed the sexual assault examination.

      The most important part of the video—Amy’s description of the incident of

abuse—largely resembled Amy’s in-court testimony and her descriptions as testified

to by Mariah and Henley. Amy testified at trial that Woods called her into his room

one day and made her lick his middle part while he was on the bed and she was on her

knees and that she went back to her bedroom afterward. Mariah testified that Amy

told her that Woods made Amy lick his middle part. And Henley testified that Amy

told her the same and also told her that Woods said “[T]hat feels good, oh, keep

going,” and told Amy not to tell Mariah. Although Amy’s description of the events in

                                            25
the forensic interview provided more detail than her trial testimony, it provided

essentially the same story and we find it unlikely that the jury was inclined to reject

Amy’s story of sexual abuse but changed its mind after hearing it again in the

recording.   See Todd v. State, Nos. 02-12-00114-CR, 02-12-00115-CR,
2013 WL

1457735
, at *5 (Tex. App.—Fort Worth Apr. 11, 2013, pet. ref’d) (mem. op., not

designated for publication) (holding that erroneous admission of forensic interview

video, in which child described abuse with more detail, was harmless); see also Shaw v.

State,
122 S.W.3d 358, 364
(Tex. App.—Texarkana 2003, no pet.) (“Because the State

sufficiently proved the fact to which the hearsay relates by other competent and

unobjected-to evidence . . . , we hold the admission of the hearsay constituted

nonreversible error.”). We hold that the admission of this part of the video did not

constitute reversible error.5 See Matz, 21 S.W.3d at 912–13.

      We therefore conclude that, in the context of the entire case against Woods,

the trial court’s error in admitting the video of the forensic interview did not have a

substantial or injurious effect on the jury’s verdict and did not affect Woods’s

substantial rights. See King,
953 S.W.2d at 271
. Thus, we disregard the error, see Tex.

R. App. P. 44.2(b), and overrule the remainder of Woods’s third point.

      5
        To the extent the video goes beyond Amy’s description of events—it included
a ten-minute “getting to know you” discussion between Amy and Dula, a discussion
of an incident when Amy fell at the park and Woods assisted her, identification of
Amy’s private parts, a discussion about an incident at school with a male classmate,
and Amy’s discussion of her relatives, pets, and general home life—Woods does not
argue, and we do not view the admission of these portions of the interview as rising to
the level of harmful error, either.

                                          26
                                  Conclusion

      Having overruled each of Woods’s three points, we affirm the trial court’s

judgment.

                                                 /s/ Bonnie Sudderth

                                                 Bonnie Sudderth
                                                 Chief Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: October 25, 2018




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