TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00691-CR
Joseph Frank Pavelka IX, Appellant
v.
The State of Texas, Appellee
FROM THE 274TH DISTRICT COURT OF HAYS COUNTY
NO. CR-18-0330-C, THE HONORABLE GARY L. STEEL, JUDGE PRESIDING
MEMORANDUM OPINION
Joseph Frank Pavelka IX appeals, on evidentiary grounds, his convictions for
sexual offenses against a child. He argues that the trial court reversibly erred in admitting fourteen
exhibits (covers and pages from the complainant’s childhood journals) as prior consistent
statements, and the complainant’s forensic interview under the rule of optional completeness.
Because we find the trial court did not abuse its discretion in either admission, we will affirm.
BACKGROUND
This case involves Pavelka’s assaults against his half-sister D.H., back in 2007 or
2008, when Pavelka was around 17 years old and a senior in high school. At that time, he lived
with his siblings C.J. (around age 2); complainant D.H. (around 7); J.P. (around 12); their mother
Michelle Sloas; and his step-father Milton Harris. (Harris is complainant D.H.’s father.)
In December 2015, D.H., by then 15, went to see Dr. Karyn Collins for a well-child
check. When Dr. Collins asked D.H. whether she was sexually active, she said she did not know
but that something sexual had occurred when she was around 7 or 8 involving her and Pavelka.
D.H. told Dr. Collins that she had told her mother at the time of the abuse, and she had told some
friends from school. D.H. said her mother did not report it “for fear of [D.H.’s] father knowing.”
Dr. Collins told D.H. that she would need to talk to her mother and she would have to report it.
After an investigation—including an interview of D.H. at Roxanne’s House, the
Children’s Advocacy Center of the Hays-Caldwell Women’s Center, by forensic interviewer
Vanessa Paulini—Pavelka was indicted for indecency with a child by sexual contact (count 1) and
three counts of aggravated sexual assault of a child (counts 2, 3 and 4). Pavelka was tried on these
counts three times before the trial which is the subject of this appeal. The first ended with a mistrial
after voir dire, the second with a hung jury on counts 1-3 and a not guilty on count 4, and the third
with another mistrial after the discovery of the journals at issue in this case. Pavelka’s jury trial in
this case was on counts 1-3.
D.H., age 23 at trial, testified that when she was 6 or 7 and Pavelka was 16 or 17,
he, while lying on the floor watching her play video games, asked her to get on top of him and
move back and forth. She did. As they lay crotch to crotch “he kind of just grabbed my hips” and
moved her body against him. He stopped when they got called to eat; he told her “not to tell
anyone. That I would get in trouble.” This was a daytime incident, and the door was cracked
open. Her other family members were in the back living room watching TV. She agreed when
asked if this kind of thing occurred “often.”
She also testified about a nighttime incident, where Pavelka called her into his
room. “Whenever he brought me in the room, he asked me if I wanted to do it.” She said yes.
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J.P. was sleeping in the room and Pavelka told her to be quiet. They laid down on the futon in the
room and “he would finger me. Make me give him oral.” She said he would move her head back
and forth and he would ejaculate in her mouth and she would spit it out in the kitchen sink. This
was common, until he moved out after his senior year in high school. She also testified that
Pavelka showed her pornography; the brothers had a computer in their closet. After
cross-examination, and over objection, the trial court admitted journals D.H. had kept as a child
containing statements about “sex with Joey.”
In addition, forensic interviewer Vanessa Paulini testified about her 2016 interview
with D.H., and, over objection, the jury was shown a recording of that interview. Pavelka also
testified. He unequivocally denied he ever acted inappropriately and said he had no idea why D.H.
was claiming that he had abused her.
The jury convicted Pavelka of each of the three counts and the trial court sentenced
Pavelka to six years for each offense, to run concurrently.
ANALYSIS
Standard of Review
We review a trial court’s ruling on the admission of evidence for an abuse of
discretion. Colone v. State, 573 S.W.3d 249, 263-64 (Tex. Crim. App. 2019). A trial court “abuses
its discretion when it acts without reference to any guiding rules and principles or acts arbitrarily
or unreasonably.” Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). If the trial
court’s evidentiary ruling is correct under any applicable theory of law, it will not be disturbed
even if the trial court gave a wrong or insufficient reason for the ruling. Johnson v. State,
490 S.W.3d 895, 908 (Tex. Crim. App. 2016).
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Admissions of Journal Exhibits
Pavelka argues that the trial court erred in admitting multiple exhibits1 from D.H.’s
three journals as non-hearsay under Rule 801(e)(1)(B) because (1) the defense never made an
express or implied charge that D.H. recently fabricated her trial allegations or acted, in testifying,
from a recent improper influence or motive, and (2) the statements in the exhibits were not truly
consistent with D.H.’s testimony. Counsel obtained a running objection to the admission of the
journal exhibits on multiple grounds including that raised here, and here contends the admission
was reversible error.
Under Rule 801(e)(1)(B), a declarant-witness’s prior statement is not hearsay if the
“declarant testifies and is subject to cross-examination about a prior statement,” and the statement
“is consistent with the declarant’s testimony and is offered to rebut an express or implied charge
that the declarant recently fabricated it or acted from a recent improper influence or motive in so
testifying[.]” Tex. R. Evid. 801(e)(1)(B). An appellate court, in assessing whether the
cross-examination of a witness makes an implied charge of recent fabrication or improper motive,
should focus on the purpose of the impeaching party, the circumstances, and the interpretation
placed on them by the trial court. Hammons v. State, 239 S.W.3d 798, 808 (Tex. Crim. App.
2007). Courts may also consider clues from the voir dire, opening statements, and closing
arguments. Id.
The trial court never articulated under what rule of evidence it admitted the exhibits,
but the State cited Rule 801(e)(1)(B) as the “primary reasoning behind this admissibility.” It also
1 In the reporter’s record, these State’s exhibits are labeled as Court’s Exhibits. They were admitted under seal. After admission of the exhibits complained about here, the Defense opted to have the entire exhibits admitted under the rule of optional completeness. The full journals are labeled as State’s Exhibits 8, 9, and 10, and they were also admitted under seal.
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referred to Rule 803(3), the hearsay exception for statements of then-existing mental, emotional,
or physical condition. As discussed below, we find the trial court did not abuse its discretion in
finding the journal exhibits—consisting of authenticating evidence, prior consistent statements, or
then-existing mental, emotional, or physical condition statements—admissible.
Context or Authenticating Evidence
Of the exhibits complained about, 8, 9, 10, 11, 14, 15, 19, 20, and 21 consist of the
front and/or back covers of the three journals, pages containing dates and other innocuous entries,
and pages identifying D.H. as the owner of the journals. Specifically, EX 8 consists of the front
cover, the side of, and the back cover of the Princess journal. D.H. had written her name across
the side of the journal. EX 9 is the first page of that journal, in which D.H. wrote her name. EX 10,
dated 11/10/09, contains the entry “My best friend said that she hates me and then I told on her
and now she is not my best.” EX 11 is two pages, one containing the entry, “I have a boyfriend
his name was Nathaniel and he was funny and loved me with all his heart,” and another page, dated
11/21/09, and written by her friend saying D.H. is her best friend and recounting a trip to the mall
for D.H.’s birthday. EX 14 consists of the front and back covers of the Monsters journal. EX 15
is the back page of that journal with the entry, “If found please return [D.H.]” with her phone
number. EX 19 consists of the front and back cover of the Brown journal. EX 20 is its first page
with D.H.’s name on it. And EX 21 is the next page from that journal with the entry, “Please Don’t
Read” and setting out a table of contents.
Pavelka correctly contends that these exhibits do not contain prior consistent
statements. Many contain no statements whatsoever. But these exhibits were part of the State’s
authentication of the remaining exhibits. “To satisfy the requirement of authenticating or
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identifying an item of evidence, the proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it is.” Tex. R. Evid. 901(a). Here, a witness
with knowledge, D.H., testified that these exhibits were what the State claimed they were—parts
of her childhood journals. The trial court did not abuse its discretion in admitting this
authenticating evidence. We overrule Pavelka’s complaints about the admission of EX 8, 9, 10,
11, 14, 15, 19, 20, and 21 and turn to whether the State established the admissibility of the
written contents.
Prior Consistent Statements
EX 13, which D.H. testified had been written like the two pages before it, in late
2009, contains the entry “I have had sex with my brother Joey.” Part of EX 17, a 03/03/13 entry
contains the statement “Oh yeah and you know about Joey and the sex he made me do w/him[.]”
And EX 22 reads “First this is my Deepest Darkest Secrete. I had SEX With Joey.”
Again, Pavelka argues that the defense never opened the door to these statements,
which he contends are too general to be truly consistent. But the threshold for meeting the criteria
for admission is low. Hammons, 239 S.W.3d at 804–05. “There is no bright line between a general
challenge to memory or credibility and a suggestion of conscious fabrication, but the trial court
should determine whether the cross-examiner’s questions or the tenor of that questioning would
reasonably imply an intent by the witness to fabricate.” Id. at 805. Although Pavelka’s defense,
from opening statement to closing argument, was that Pavelka had been falsely accused, counsel
also developed a theory that D.H.’s allegations grew over time—that she consciously added
information at trial that was not present in earlier accounts.
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The strategy started during voir dire with several questions regarding the
truthfulness of children and sexual assault allegations, including “Does anyone think that it’s
possible that a person can be on the stand telling you something and it’s factually not true, but
they’ve come to believe it?” and “What do you think might be different in how you assess a
person’s credibility whether they’re telling the truth when maybe it was first told as a child and
now the person is an adult?” Counsel also asked where venirepersons stood on the spectrum: “Just
that there are different positions. Some people think that kids will never lie about sexual
molestation or assault. And others think, ‘Sure they will. They will lie about that just like they
lie about other stuff.’” This continued during the Defense’s opening. The Defense told the jury
that it could neither lay a “road map for what we think the evidence will show” nor tell a story “in
narrative form.” Counsel stated that “after hours and hours of working on this case, I just couldn’t
do either one of them because I couldn’t forecast something that would make sense because it just
doesn’t make sense.”
And counsel brought the it-doesn’t-make-sense strategy to fruition in
cross-examination. Straight away, counsel questioned D.H. about the fact that, in previous
hearings, she had said the assaults only occurred a “few” times, and “oral sex just happened once,”
but now she was saying the assaults occurred often and were common. The commonsense
implication was that D.H. recently (at least in relative terms) exaggerated the number of assaults.
Defense counsel also brought out the inconsistency between D.H.’s trial testimony
that Pavelka had showed her pornography and her denial of that in her interview at Roxanne’s
House—and remarked that the interview took place much closer in time to the alleged abuse than
did the testimony. Here, the commonsense implication was that D.H. relatively recently expanded
the universe of Pavelka’s bad actions.
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These commonsense implications were made explicit in defense counsel’s
closing argument:
[D.H.’s] testimony. She’s got parts of it that she doesn’t know, she doesn’t
remember. She’s got parts of it that she has come up with details now that she has
never had in the past. Some things like—I guess like any good fish story: The more
times you tell it the fish gets bigger and bigger and bigger. And so now all of a
sudden we have some details that we didn’t have previously. That doesn’t make
sense to me.
Defense counsel’s implied attacks of recent fabrication suffice to support the trial court’s discretion
to decide that the defense opened the door to D.H.’s prior consistent statements contained in
EX 13, part of 17, and 22 relating to “having sex with Joey.” All predate D.H.’s testimony in this
case. While the defense alleged D.H. fabricated the allegations from the beginning, it also asserted
that her trial testimony contained matters that she had not previously alleged. See Gutierrez v.
State, 630 S.W.3d 270, 282 (Tex. App.—Eastland 2020, pet. ref’d).
And, although the expressions in the journals lacked specifics, prior consistent
statements need only be “generally consistent” with the declarant’s testimony. Hammons,
239 S.W.3d at 804; Dibello v. State, 432 S.W.3d 913, 915 (Tex. App.—Houston [1st Dist.] 2014,
pet. ref’d). The trial court therefore did not abuse its discretion in admitting the statements in
EX 13, 17, and 22 relating to “having sex with Joey.”
Statements of Then-Existing Mental, Emotional, or Physical Condition
EX 16, dated 08/29/12, has an entry that includes “So today was good. . . . I told
my mom what . . . brother did (Joey) to me. I actually told her everything.” “Oh my gosh it is a
Relief I like the world was on my shoulders and Jesus picked it up and spun it like a basketball on
his finger.” It goes on to say that mom told grandma and that both said, “it wasn’t my fault and
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joey will have to Pay the price[.]” Part of EX 17, the 03/03/13 entry, reads, “Today I started cutting
myself.” Another part reads, “well the sperm went into my body and I think that maybe it is
coming out of my body now . . . and it is coming out a lot and it is making me smell.” EX 18,
dated March 2013 contains another reference to cutting.
Again, Pavelka contends these are not prior consistent statements. We agree. But
Rule of Evidence 803(3) excepts from the hearsay rule a statement of the declarant’s then-existing
state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such
as mental feeling, pain, or bodily health) that is not a statement of memory or belief to prove the
fact remembered or believed. Tex. R. Evid. 803(3). And these statements—relating to the relief
D.H. felt the same day after telling her mother about the abuse and her cutting herself—relate
D.H.’s contemporaneous emotional or physical state, and so reasonably fall under this hearsay
exception. We therefore overrule Pavelka’s complaints about the admission of these statements
within EX 16, 17, and 18.
Having overruled all of Pavelka’s complaints related to the journals, we turn to the
admission of the recording of the forensic interview.
Admission of the Forensic Interview
Pavelka next complains that the trial court’s admission of the forensic interview
under the rule of optional completeness after he questioned D.H. about one aspect of it—her denial
that Pavelka showed her pornography—was reversible error.
Texas Rule of Evidence 107 provides in part that if a party introduces part of a
recorded statement, an adverse party may inquire into any other part on the same subject or
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introduce any 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.
Pavelka argues the admission of the Roxanne’s House interview was not necessary
to the jury’s full understanding of this exchange:
Q. And there was one part of that interview where she specifically asked you if Joey
had shown you any movies like with naked people or porn or any—anything like
that and you told her no; right?
A. I don’t remember.
The purpose of Rule 107 is “to reduce the possibility of the jury receiving a false impression from
hearing only a part of some act, conversation, or writing.” Walters v. State, 247 S.W.3d 204, 218
(Tex. Crim. App. 2007). There was no false impression left by the above exchange. However,
the door to the interview, which contained numerous prior consistent statements, was also opened
by the defense’s implied charge of recent fabrication discussed above. See Gutierrez, 630 S.W.3d
at 282 (recorded interview admissible as prior consistent statement); Martinez v. State, 276 S.W.3d
75, 82 (Tex. App.—San Antonio 2008, pet. ref’d) (same). Because the interview was admissible
as non-hearsay under Rule 801(e)(1)(B), the trial court did not abuse its discretion in admitting it.
CONCLUSION
Having overruled Pavelka’s evidentiary complaints, we affirm the trial
court’s judgments.
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Chari L. Kelly, Justice
Before Justices Triana, Kelly, and Theofanis
Affirmed
Filed: August 27, 2026
Do Not Publish
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