Court of Appeals
Tenth Appellate District of Texas
10-25-00084-CR
Clark Aaron Travis,
Appellant
v.
The State of Texas,
Appellee
On appeal from the
369th District Court of Leon County, Texas
Judge Charles Michael Davis, presiding
Trial Court Cause No. 23-0019CR
JUSTICE SMITH delivered the opinion of the Court.
MEMORANDUM OPINION
Clark Aaron Travis was charged with nine counts alleging various acts
of sexual abuse committed against five different children. A jury found Travis
guilty of seven counts of sexual assault of a child, one count of sexual assault,
and one count of aggravated sexual assault of a child.1 Travis presents nine
1 In Count Six, Travis was charged with continuous sexual abuse committed against two of the alleged
victims, “Amber” and “Helen.” The jury convicted him of the lesser-included offense of aggravated sexual assault of a child against Amber.
issues on appeal. He alleges the trial court erred by denying his motion for
mistrial and admitting witness testimony after violations of the witness
sequestration rule, erroneously cumulating certain sentences, refusing to order
the State to disclose witness interview notes, excusing a juror over objection,
partially closing the courtroom during trial, and excluding and admitting
certain evidence. We affirm.
Motion for Mistrial and Admission of Witness Testimony
In his first and second issues, Travis claims that violations of Texas Rule
of Evidence 614 (“the Rule”) by multiple witnesses warranted a mistrial and
the exclusion of “Joanna’s” testimony. See TEX. R. EVID. 614. He asserts that
the Rule violations “impacted the testimony of nine potential witnesses[,]”
resulting in cumulative harm or structural error. We disagree.
STANDARD OF REVIEW AND RELEVANT LAW
We review a trial court’s denial of a motion for mistrial and a trial court’s
admission of evidence for an abuse of discretion. Archie v. State, 221 S.W.3d
695, 699-700 (Tex. Crim. App. 2007); McDonald v. State, 179 S.W.3d 571, 576
(Tex. Crim. App. 2005).
Rule of Evidence 614, known as “the Rule,” provides for the exclusion of
witnesses from the courtroom during trial. See TEX. R. EVID. 614. Its purpose
is to prevent the testimony of one witness from influencing the testimony of
Clark Aaron Travis v. The State of Texas Page 2 another. See Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996). The trial
court must instruct witnesses who are placed under the Rule that they may
not converse with each other or with any other person about the case, except
by the court’s permission. See TEX. CODE CRIM. PROC. ANN. art. 36.06.
A violation of the Rule is not, in itself, reversible error. See Archer v.
State, 703 S.W.2d 664, 666 (Tex. Crim. App. 1986). The trial court may exclude
the violating witness’s testimony, but the appropriate sanction for a witness’s
violation of the rule is left to the sound discretion of the trial court. See Bell,
938 S.W.2d at 50. In our review, we consider whether the defendant was
harmed or prejudiced by the witness’s violation and look at (1) whether the
witness actually conferred with or heard testimony of other witnesses, and (2)
whether the witness’s testimony contradicted testimony of a witness from the
opposing side or corroborated testimony of a witness she had conferred with or
heard. Id. (citing Webb v. State, 766 S.W.2d 236, 240 (Tex. Crim. App. 1989)).
BACKGROUND
Travis was a youth minister at a church in Buffalo, Texas, where each of
the complainants attended services at various times. Two of the complainants,
“Jamie” and “Joanna,” are sisters. Jamie testified in front of the jury on the
first day of trial testimony.
Clark Aaron Travis v. The State of Texas Page 3
Following the third day of trial testimony, the stepmother of Jamie and
Joanna contacted the prosecutor after learning about potential violations of
the Rule. Jamie had informed the stepmother that a courtroom observer,
Audra Rhodes, had been communicating with Brandi Marshall, a defense
subpoenaed witness, about testimony from the trial. According to the
stepmother, Marshall was relaying this information to Jamie and Joanna’s
mother, who was a State subpoenaed witness. The mother then attempted to
share the information with Jamie and Joanna, despite Jamie and Joanna’s
consistent protests. The prosecutor then spoke directly with Jamie and
Joanna, who confirmed the allegations about their mother’s attempted
communications. The prosecutor notified defense counsel and the trial court
so that the violations could be addressed the following morning.
At an in-chambers hearing, Travis moved for a mistrial. The trial court
took the motion under advisement, and then conducted an extensive hearing
outside of the jury’s presence about the alleged violations. A summary of the
relevant information and testimony follows.
After Rhodes admitted that she informed Marshall of “some of the
statements that are being made” in the courtroom, the trial court held Rhodes
in contempt and remanded her into custody until the trial concluded. Marshall
later admitted that Rhodes talked to her about “[m]ostly everything” that was
Clark Aaron Travis v. The State of Texas Page 4 happening in trial, including Jamie’s testimony. Marshall further testified
that she relayed some of the information provided by Rhodes to Jamie and
Joanna’s mother. The trial court held Marshall in contempt and remanded her
into custody as well.
The trial court also questioned Jamie, who confirmed that her mother
attempted to relay information from Marshall to her. When asked whether the
information her mother discussed “related to anybody else’s testimony, or just
your own[,]” Jamie responded, “Just my own.” Jamie further testified to her
belief that her mother was communicating about the trial with her stepfather,
who was under the Rule.
Joanna testified that her mother called her on the telephone more than
once and tried to give her information about the trial. Joanna, however,
repeatedly told her mother to stop telling her information about trial.
Regarding what specific information Joanna learned from her mother, she
testified that “the only thing that I really found out about anybody’s testimony
was that [Marshall] was laying on the pew. I don’t know anything about the
full story of that, or anything. I don’t know anything that was said in here, or
nothing like that.”2 Joanna also admitted that she asked Jamie if “it was
looking good or bad[,]” and Jamie responded “not to worry about it.”
2 Travis also mentions alleged Rule violations by “Boy [Jamie]” and Jamie’s fiancé.
These allegations
stem from Joanna’s text message to the prosecutor about the Rule violations. The message said that
Clark Aaron Travis v. The State of Texas Page 5
The mother of Jamie and Joanna confirmed that Marshall obtained
information from someone observing the trial and then shared that
information with her. The mother also testified that she talked to Jamie about
the digital evidence displayed during Jamie’s testimony. She further
confirmed that both Jamie and Joanna told her not to talk about the trial with
them. The mother admitted that she spoke with Jamie and Joanna’s
stepfather about the trial information that Marshall had relayed to her. The
trial court held the mother in contempt and remanded her into custody.
The trial court denied Travis’s motion for mistrial and overruled his
request to prohibit Joanna from testifying in front of the jury. However, the
trial court ordered that Travis could cross-examine witnesses about the Rule
violations in front of the jury, including permitting Travis to recall witnesses
who had already testified to bring to light their role, if any, in the violations.
Sealed copies of Joanna’s forensic interview, her sexual assault examination
history, and her sworn testimony from a prior trial were also admitted.
“Boy [Jamie] told [Jamie’s fiancé] they asked about a phone after [Jamie’s fiancé] told him he didn’t want to know and he wasn’t allowed to and [Jamie’s fiancé] told mom when he was told[.]” Jamie’s fiancé testified on the second day of trial testimony and was not recalled to develop this alleged violation. “Boy [Jamie]” did not testify at trial and was not called as a witness to develop any evidence about this alleged violation.
Clark Aaron Travis v. The State of Texas Page 6 ANALYSIS
As to Joanna, Travis generally states, without citation to the record, that
the case is “riddled with examples of [Joanna] changing her recollection of
events.” However, Travis does not identify any way in which Joanna’s trial
testimony was altered by the Rule violations. Though Jamie and Joanna’s
testimonies were corroborating in the sense that they alleged inappropriate
sexual conduct, they each testified to their own individual experiences with
Travis based on separate facts and circumstances. See Martinez v. State, 186
S.W.3d 59, 66 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).
Moreover, the trial court took several curative measures to alleviate
potential prejudice from the Rule violations as they may have related to
Joanna’s testimony, including admitting sealed copies of Joanna’s forensic
interview, her history at her sexual assault examination, and her sworn
testimony from a prior trial. On appeal, Travis does not point to any
discrepancies between Joanna’s testimony and her prior statements. Defense
counsel also cross-examined Joanna in front of the jury about the Rule
violations. See Miller v. State, No. 01-19-00126-CR, 2020 WL 4590304, at *7
(Tex. App.—Houston [1st Dist.] Aug. 11, 2020, no pet.) (mem. op., not
designated for publication) (citing Reed v. State, No. 14-02-00671-CR, 2003
WL 21782537, at *3 (Tex. App.—Houston [14th Dist.] July 31, 2003, pet. ref’d)
Clark Aaron Travis v. The State of Texas Page 7 (mem. op., not designated for publication) (finding no abuse of discretion where
witness was cross-examined in front of jury about Rule violation)). We find
that the trial court did not abuse its discretion in admitting Joanna’s testimony
despite the Rule violations. Accordingly, we overrule Travis’s second issue.
Travis’s complaint regarding his motion for mistrial is that the extensive
Rule violations undermined the integrity of the proceedings as a whole and
violated his right to due process and right to cross-examination of witnesses.
Travis claims that he was harmed because the “witnesses involved are all
central to all the claims in the case.” A mistrial is an extreme remedy reserved
for a narrow class of circumstances in which “the prejudice is incurable.”
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Travis did not
identify, at trial or on appeal, any specific prejudice suffered as a result of the
Rule violations, arguing instead that there is no way to measure the potential
harm caused. He conceded at oral argument that there was no direct proof
that the Rule violations impacted any witness’s testimony. Therefore, we
cannot say that the trial court abused its discretion in denying Travis’s motion
for mistrial, and we overrule his first issue.
Closing the Courtroom
In his sixth issue, Travis asserts that the trial court violated his Sixth
Amendment right to a public trial by excluding certain groups of people from
Clark Aaron Travis v. The State of Texas Page 8 the courtroom after the Rule violations. See U.S. CONST. AMENDS. VI, XIV. We
find that Travis failed to preserve this issue for appellate review.
ANALYSIS
After the witness sequestration rule violations came to light, the trial
court excluded the following groups of people from the courtroom for the
remainder of the trial:
On the defense side, any family members of your witnesses, church
members, former church members. And on the prosecution side,
any family members, witnesses, family members [sic], and et
cetera […] But if -- the Court reserves the right should I --somebody come in there that appears suspicious, or doesn’t seem
to have - - you know, which has happened before, if something
appears suspicious, the Court will inquire to find out, and I reserve
the right to bar any other individuals as well.
The right to a public trial is forfeitable and must be preserved by a
timely, specific objection. Dixon v. State, 595 S.W.3d 216, 222-23 (Tex. Crim.
App. 2020). The complaining party must also obtain an adverse ruling on the
objection or object to the trial court’s failure to rule. Id. at 223.
Travis acknowledges on appeal that he failed to object to the trial court’s
closure of the courtroom to these groups of observers. We find that Travis has
waived this issue for appellate review. See TEX. R. APP. P. 33.1(a); Dixon, 595
S.W.3d at 222-23. Accordingly, we overrule Travis’s sixth issue.
Clark Aaron Travis v. The State of Texas Page 9
Non-Disclosure of Witness Interview Notes
In his fourth issue, Travis contends that the trial court erred by refusing
to order the prosecutor to produce her witness interview notes to the defense.
We disagree.
STANDARD OF REVIEW AND RELEVANT LAW
Relevant here, article 39.14 of the Code of Criminal Procedure requires
the State to produce or permit inspection of any “offense reports” and any
“written or recorded statements of […] a witness” if they “constitute or contain
evidence material to any matter involved in the action[.]” TEX. CODE CRIM.
PROC. ANN. art. 39.14(a). However, the statute excludes from disclosure “the
work product of counsel for the state in the case[,]” subject to the overriding
duty to disclose “any exculpatory, impeachment, or mitigating […] information
in the possession, custody, or control” of the State. Id. art. 39.14(a), (h).
We review a trial court’s ruling on discovery under article 39.14 for an
abuse of discretion. Sopko v. State, 637 S.W.3d 252, 256 (Tex. App.—Fort
Worth 2021, no pet.). If the trial court abuses its discretion, this error is subject
to a non-constitutional harm analysis under Rule 44.2(b). Hallman v. State,
721 S.W.3d 307, 308-09 (Tex. Crim. App. 2025).
Clark Aaron Travis v. The State of Texas Page 10 RELEVANT BACKGROUND
Defense counsel made an oral motion before the second day of trial
testimony for “any notes, or transcriptions of interviews” that the prosecutor
had conducted.3 While the prosecutor agreed that “if a witness is to provide
me either orally, or in my notes, or any indication of evidence that is
exculpatory, mitigating, or impeaching, I will provide that to counsel for the
defense[,]” she objected to disclosing her personal notes because article 39.14
expressly excludes work product from discovery. The prosecutor also provided
an example of another case in which she apparently provided to defense
counsel exculpatory, mitigating, or impeachment evidence obtained during an
oral conversation with a witness. The prosecutor affirmed to the trial court, in
reference to the existence of any information that needed to be disclosed from
her witness interviews, “There’s nothing here[.]” Defense counsel clarified that
she was not requesting any notes that include “impressions, or opinions from
the attorneys, which are obviously work product[,]” but wanted the “content”
of what the witnesses were saying after the State “remove[d] their impressions,
3 Specifically, defense counsel requested the trial court to “instruct the State that if any conversations
at all are had with any [witnesses] in this case, that they continue to prepare for trial, that the notes of what they’re saying be turned over to us as they’re developed, because whether it’s contradictory, corroborative, or otherwise, it is material to the case, and very important for us to have in this case where everything depends on the credibility of - - of these complainants.”
Clark Aaron Travis v. The State of Texas Page 11 their work product notes, any opinions that they’re forming as attorneys[.]”
The trial court took the motion under advisement.
The following day, defense counsel re-urged the motion for the State’s
notes and moved for a mistrial, arguing:
it’s very easy for the witness to say they don’t remember, or to deny
what was said in those meetings. For those reasons, we believe
that any notes from - - we believe that any notes from meetings
between the prosecutors, their staff, and the complaining
witnesses that contain either corroborating statements, or
contradictory statements, or even statements that they don’t
remember is required to be turned over, and using the work
product sort of excuse limits us from the evidence that we’re
entitled to.
Defense counsel alternatively suggested an in-camera review of the State’s
notes. The trial court overruled the motions and denied the request for an incamera review of the prosecutor’s notes. Though the trial court granted a
running objection, defense counsel re-urged the request for the State’s notes
and included their continued non-disclosure as grounds supporting motions for
mistrial at various points during the trial.4
ANALYSIS
Citing to a concurring opinion in In re State ex rel. Ogg, Travis proposes
on appeal that the prosecutor in this case “assume[d] the role of investigator”
4 In the trial court, defense counsel also alleged prosecutorial misconduct and spoliation of evidence
relating to the prosecutor’s witness interview notes. Travis does not carry these contentions forward on appeal.
Clark Aaron Travis v. The State of Texas Page 12 by personally interviewing witnesses and developing her own strategy. See In
re State ex rel. Ogg, 630 S.W.3d 67, 70-71 (Tex. Crim. App. 2021)(Newell, J.,
concurring). As such, he equates the prosecutor’s notes from the witness
interviews, if any, to “investigative reports” subject to disclosure under article
39.14(a). He also takes issue with the State’s failure to take notes during all
of the witness interviews, contending that “any interview conducted” should
have been “memorialized and presented” to him.
First, we agree with the State that this case is distinguishable from In
re State ex rel. Ogg. In that case, after the district attorney’s office learned that
a law enforcement raid was based on false information provided by one of the
detectives, the district attorney’s office “undertook an independent
investigation” of the officers involved. Id. at 70. The trial court compelled
disclosure of “reports, maps, and power points” created by the investigators in
the district attorney’s office, finding that they qualified as “offense reports”
subject to discovery because the district attorney’s office was “the investigating
entity for the offenses at issue.” Id. at 67-68. The State apparently conceded
that “the requested documents would be discoverable if they had been created
by the police department.” Id. at 72. Here, however, the district attorney’s
office and its investigators were not the “investigating entity” for the offenses
Clark Aaron Travis v. The State of Texas Page 13 at issue, and the documentation Travis sought to obtain was the prosecutor’s
personal notes.
Secondly, as to Travis’s contention that the prosecutor was required to
memorialize her witness interviews and provide those documents to him,
article 39.14 does not require the State to create a document that is not already
in its possession, custody, or control. In re State ex rel. Skurka, 512 S.W.3d
444, 454-55 (Tex. App.—Corpus Christi-Edinburg 2016, orig. proceeding). We
also note that while the State, as acknowledged by the prosecutor, has an
overriding duty to disclose any exculpatory, impeachment, or mitigating
information despite any claimed work-product privilege, the statute does not
mandate a particular mechanism for that disclosure. See TEX. CODE CRIM.
PROC. ANN. art. 39.14(h).
Finally, Travis has not directed us to any case in which a prosecutor’s
trial preparation notes from witness interviews qualify as a “witness
statement” subject to disclosure under article 39.14(a). We find instructive the
definition of a “witness statement” found in Rule of Evidence 615(f), entitled
“Producing a Witness’s Statement in Criminal Cases.” See TEX. R. EVID. 615(f).
Under Rule 615(f), a “witness statement” is defined as: (1) a written statement
that the witness makes and signs, or otherwise adopts or approves; (2) a
substantially verbatim, contemporaneously recorded recital of the witness’s
Clark Aaron Travis v. The State of Texas Page 14 oral statement that is contained in any recording or any transcription of a
recording; or (3) the witness’s statement to a grand jury. Id. Courts have
commonly held that prosecutor’s notes do not qualify as a “witness statement”
under Rule 615(f) and its predecessor statute. See, e.g., Pondexter v. State, 942
S.W.2d 577, 582-83 (Tex. Crim. App. 1996); Smith v. State, 65 S.W.3d 332, 343
(Tex. App.—Waco 2001, no pet.).
Considering the foregoing, we cannot say that the trial court abused its
discretion in determining that the prosecutor’s notes were not subject to
disclosure under article 39.14. Accordingly, we overrule Travis’s fourth issue.
Excused Juror
In his seventh issue, Travis contends that the trial court reversibly erred
by dismissing a juror on the second day of testimony and seating an alternate
juror in his place. We disagree.
STANDARD OF REVIEW AND RELEVANT LAW
A trial court may dismiss a juror who is “found to be unable […] to
perform [his] duties” and replace him with an alternate juror. See TEX. CODE
CRIM. PROC. ANN. art. 33.011(b). Appellate courts have held that being
“unable” to serve in article 33.011 is indistinguishable from being “disabled” as
used in article 36.29. See id. art. 36.29; Colvin v. State, 467 S.W.3d 647, 652
(Tex. App.—Texarkana 2015, pet. ref’d). “Disabled” means that the juror is
Clark Aaron Travis v. The State of Texas Page 15 suffering from a “physical illness, mental condition, or emotional state that
would hinder or inhibit the juror from performing his or her duties as a juror[.]”
Scales v. State, 380 S.W.3d 780, 783 (Tex. Crim. App. 2012). The trial court
must make a finding, sufficiently supported by the record, that the juror was
disqualified or unable to perform his duties. Id. at 784.
We review a trial court’s decision to dismiss a disabled juror for an abuse
of discretion and view the evidence in the light most favorable to the trial
court’s decision. Id.
ANALYSIS
Here, the trial court dismissed the juror and seated an alternate juror
after hearing sworn testimony from the dismissed juror’s mother. The mother
explained that the juror had been diagnosed with profound social anxiety, that
he received medical care from a psychiatrist and a neurologist, and that he
“has a 70 percent disability with the V.A.” She testified that his service on the
jury was “too much,” that he began repeatedly vomiting at 6:30 that morning,
and that he was continuing to vomit when she left for the courthouse at 8:30
a.m. The mother also stated her belief that the juror’s condition would not ease
or change if he continued serving on the jury, and she requested that the trial
court dismiss him for his physical and mental well-being.
Clark Aaron Travis v. The State of Texas Page 16
Travis agrees that a trial court generally does not abuse its discretion in
discharging a juror as disabled when emotional stress resulted in the juror’s
physical illness. His complaint centers on the sufficiency of the evidence
supporting the trial court’s determination because the trial court did not hear
directly from the dismissed juror about his disability and because his mother
did not provide any corroboration for her testimony about the juror’s mental
condition. He also asserts that the trial court failed to enter an order that the
juror was disabled “as envisioned by the statute.”
We agree with the State that the trial court is not required to speak
directly with a juror before making a disability determination. See Scales, 380
S.W.3d at 784 n. 18. Neither must the court obtain medical corroboration
before discharging a juror as disabled. Fernandez v. State, 597 S.W.3d 546,
570-71 (Tex. App.—El Paso 2020, pet. ref’d). Further, while we may not
presume from a silent record that a juror’s dismissal was proper, the law does
not require a formal order. See Scales, 380 S.W.3d at 784. In deciding to
dismiss the juror, the trial court described its inability to accommodate an
“individual with an anxiety issue of this magnitude, of which he’s on 70 percent
disability for,” to enable his continued service on the jury. The record
sufficiently supports the trial court’s dismissal of the juror. Accordingly, we
overrule Travis’s seventh issue.
Clark Aaron Travis v. The State of Texas Page 17
Prior Sexual History
In his fifth issue, Travis alleges that the trial court abused its discretion
by sustaining the State’s objection to rebuttal testimony about Jamie’s prior
sexual behavior under Texas Rule of Evidence 412. See TEX. R. EVID. 412. We
disagree.
STANDARD OF REVIEW AND RELEVANT LAW
In a sexual assault case, specific instances of a complainant’s prior
sexual conduct are generally inadmissible. Former TEX. R. EVID. 412(a)
(repealed and replaced by Supreme Court Order of Aug. 25, 2025, Misc. Docket
25-9064). There are, however, five narrow exceptions to this general rule. Id.
R. 412(b)(2)(A-E). Relevant here, specific instances of a complainant’s prior
sexual conduct may be admissible if the evidence is necessary to rebut or
explain scientific or medical evidence offered by the State. Id. R. 412(b)(2)(A).
Before this type of evidence may be admitted at trial, the proponent must
follow a specific procedure. Id. R. 412(c).
Before offering any evidence of the victim's past sexual behavior,
the defendant must inform the court outside the jury's presence.
The court must then conduct an in camera hearing, recorded by a
court reporter, and determine whether the proposed evidence is
admissible. The defendant may not refer to any evidence ruled
inadmissible without first requesting and gaining the court's
approval outside the jury's presence.
Id.
Clark Aaron Travis v. The State of Texas Page 18
Such evidence is also subject to a balancing test that requires weighing
its probative value against the danger of unfair prejudice. Id. 412(b)(3).
We review a trial court’s decision to exclude evidence for an abuse of
discretion, and we will uphold a trial court’s evidentiary ruling if it is
reasonably supported by the record and is correct under any applicable theory
of law. Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008).
RELEVANT FACTS
During the State’s case-in-chief, Jamie testified that she experienced
significant pain and an excessive amount of bleeding when Travis attempted
to penetrate her vagina with his penis at her grandmother’s tax office. One of
the other complainants who was in the bathroom when the alleged sexual
assault occurred said that she heard Jamie say, “stop, it hurts[,]” and later
observed blood running down Jamie’s leg. Jamie also provided similar
information during her sexual assault medical examination. Two sexual
assault forensic examiners testified that Jamie had a hymenal transection.
They explained that this type of injury was a “very abnormal” and “severe”
injury, and would have caused a significant amount of bleeding and pain.
Travis later called Jamie’s ex-boyfriend as a witness at trial. After
establishing general background information, while in front of the jury,
defense counsel asked the ex-boyfriend if he and Jamie had ever been sexually
Clark Aaron Travis v. The State of Texas Page 19 active together. The State objected that defense counsel failed to comply with
the procedural requirements in Rule 412 and violated the State’s motion in
limine.
After the jury was excused from the courtroom, the trial court directed
defense counsel to read the procedural requirements in Rule 412, which
counsel acknowledged required an in-camera hearing and an admissibility
determination before the evidence was offered. Since the jury was not in the
courtroom, however, the trial court conducted the in-camera hearing. The exboyfriend testified that he and Jamie had sexual intercourse together one time
before she began dating her fiancé. Because Jamie was already dating her
fiancé at the time Travis allegedly sexually assaulted her, Travis wanted to
offer the ex-boyfriend’s testimony as an alternative cause of Jamie’s hymenal
transection.
The trial court sustained the State’s objection and prohibited further
questioning about specific instances of sexual conduct.
ANALYSIS
Travis argues that the ex-boyfriend’s testimony was admissible to
discredit Jamie’s testimony that she was a virgin at the time she was sexually
assaulted by Travis and to rebut the medical testimony suggesting that Travis
caused Jamie’s injury.
Clark Aaron Travis v. The State of Texas Page 20
However, defense counsel acknowledged that she mistakenly violated
the procedural requirements of Rule 412 and apologized for doing so. A
defendant who fails to meet the procedural requirements of admissibility for
Rule 412 cannot later complain on appeal of the trial court’s exclusion of the
evidence. See Marx v. State, 953 S.W.2d 321, 337 (Tex. App.—Austin 1997),
aff’d, 987 S.W.2d 577 (Tex. Crim. App. 1999). The trial court’s ruling is
reasonably supported by the record and is correct under this theory of law.
Moreover, we cannot say that the proffered evidence contradicts or
provides an alternate explanation for the State’s medical evidence. The State’s
medical evidence established that the type of injury Jamie sustained would
cause significant pain and bleeding; meanwhile, the ex-boyfriend described
their sexual encounter as “normal” and did not recall Jamie bleeding profusely
as a result of their encounter.
Finally, to the extent that Travis argues on appeal that the trial court’s
exclusion of this testimony inappropriately “limited [his] right to crossexamine one of his prior accusers,” we must disagree. Travis did not attempt
to cross-examine Jamie about her prior sexual conduct either before or after
the trial court’s ruling on the ex-boyfriend’s testimony.
Accordingly, we overrule Travis’s fifth issue.
Clark Aaron Travis v. The State of Texas Page 21
Expert Witness Qualifications
In his eighth and ninth issues, Travis argues that the trial court abused
its discretion by admitting the testimony of Jamie’s counselor and Joanna’s
counselor, challenging their qualifications to testify as expert witnesses. We
disagree.
STANDARD OF REVIEW
We review the trial court’s decision to allow a witness to testify as an
expert for an abuse of discretion. Gonzales v. State, 4 S.W.3d 406, 417 (Tex.
App.—Waco 1999, no pet.). Expert witness testimony that a child exhibits
characteristics common among sexually abused children is relevant and
admissible under Rule 702 because it is specialized knowledge that is helpful
to the jury. Id. A trial court is not required to follow a rigid formula in
determining whether a particular witness is qualified to give expert testimony,
and the expert witness’s knowledge or experience about a relevant issue need
only exceed that of an average juror. Id.
ANALYSIS
Kate Browning, a Licensed Professional Counseling Associate with a
Master of Science in Clinical Mental Health Counseling from University of
Mary in North Dakota, personally conducted twenty-two counseling sessions
with Jamie over a nine-month period. Through her post-graduate education
Clark Aaron Travis v. The State of Texas Page 22 and training through the Children’s Advocacy Centers of Texas, Browning
received training in child and adolescent counseling, trauma counseling, child
sexual assault counseling, advanced cognitive behavioral therapy, and childcentered play therapy. She further received training through the Yale School
of Medicine in child-family traumatic stress intervention. Browning testified
that she had counseled over one hundred children.
Jessica Covarrubias, a Licensed Professional Counseling Associate with
a master’s degree with a concentration in clinical mental health from Sam
Houston State University, personally conducted thirty-six sessions with
Joanna over a one-year period. Covarrubias had previously testified as an
expert in one criminal case and in custody cases involving the Department of
Family and Protective Services. At the time of trial, she had also counseled
over one hundred individuals.
Travis argues that neither Browning nor Covarrubias had the training
or experience to render an opinion about whether their respective clients
exhibited symptoms consistent with a child who had been sexually abused.
Specifically, he takes issue with their “limited counseling experience,” the
requirement that their work be supervised by a fully licensed therapist, and
that their training was limited to sexual assault victims. As to Covarrubias,
Clark Aaron Travis v. The State of Texas Page 23 he also notes that she was unable to “differentiate from the root cause of the
trauma suffered by [Joanna].”
A witness is not per se disqualified from testifying as an expert simply
because her counseling work must be supervised by a licensed professional
counselor. See Harnett v. State, 38 S.W.3d 650, 659 (Tex. App.—Austin 2000,
pet. ref’d). Neither does the number of sexual abuse victims counseled by
Browning and Covarrubias undermine the trial court’s determination of their
qualifications. See Biggins v. State, No. 2-02-086-CR, 2003 WL 1784924, at *3
(Tex. App.—Fort Worth Apr. 3, 2003, no pet.) (mem. op., not designated for
publication) (expert witness had counseled forty to fifty sexually abused
children). Overall, the record demonstrates that Browning and Covarrubias
possessed knowledge and training about sexually abused children that exceeds
that of an average juror. Considering each witness’s background, we cannot
conclude that the trial court was unreasonable in determining that Browning
and Covarrubias were qualified to render expert opinions on whether Jamie
and Joanna exhibited symptoms consistent with those commonly exhibited by
sexual abuse victims.
Accordingly, we overrule Travis’s eighth and ninth issues.
Clark Aaron Travis v. The State of Texas Page 24
Cumulative Sentences
In his third issue, Travis asserts that the trial court’s cumulation orders
in Counts Two, Three, Four, Eight, and Nine violate article 42.08 of the Code
of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 42.08; See also
Former TEX. PENAL CODE ANN. § 3.03(b)(2). We agree, in part.
RELEVANT LAW
When a defendant has been convicted in two or more cases, article
42.08(a) of the Code of Criminal Procedure authorizes the trial court to order
that “the judgment in the second and subsequent convictions may […] be that
the sentence imposed or suspended shall begin when the judgment and the
sentence imposed or suspended in the preceding conviction has ceased to
operate.” TEX. CODE CRIM. PROC. ANN. art. 42.08(a); see also Former TEX.
PENAL CODE ANN. § 3.03(b)(2) (permitting cumulation of certain sentences
arising out of the same criminal episode prosecuted in a single action).
However, the cumulative total of suspended sentences in felony cases is limited
to a maximum of ten years. TEX. CODE CRIM. PROC. ANN. art. 42.08(a). As
explained by the Court of Criminal Appeals,
a trial judge's decision to cumulate under Texas Code of Criminal
Procedure, Article 42.08(a), is “a normative, discretionary function
that does not turn on discrete findings of fact.” As a result, when
a trial judge lawfully exercises the option to cumulate, that
decision is unassailable on appeal. But when a trial judge
unlawfully enters a cumulation order in a case that did not involve
Clark Aaron Travis v. The State of Texas Page 25
a negotiated plea agreement, the appellate court, according to our
precedent, will reform the judgment by deleting the order.
Beedy v. State, 250 S.W.3d 107, 110 (Tex. Crim. App. 2008).
ANALYSIS
Contrary to Travis’s contention, the sentence in Count Eight is not one
of the probated sentences relevant to his issue on appeal. Travis was sentenced
in Count Eight to two years confinement. We overrule Travis’s contention that
the sentence in Count Eight is an unlawfully cumulated suspended sentence.
We summarize Travis’s sentences in the relevant counts as follows:
• Count Two: five years in prison, probated for ten years; to run
consecutively to the two-year prison sentence in Count Eight5
• Count Three: two years in prison, probated for ten years; to run
consecutively to the probated sentence in Count Two
• Count Four: two years in prison, probated for ten years; to run
consecutively to the probated sentence in Count Three
• Count Nine: five years in prison, probated for ten years; to run
consecutively to the probated sentence in Count Four
The State agrees that the cumulation orders in the judgments concerning
probated sentences, as they currently stand, are unlawful. However, the State
advocates for a remedy that would reduce the underlying terms of confinement
5 Count Eight was the final count in the cumulation of all of the prison sentences. Effectively, the trial court ordered that Travis serve all of his prison sentences consecutively to one another, and then begin serving his probated sentences.
Clark Aaron Travis v. The State of Texas Page 26 on the probated sentences to a cumulative total of ten years, instead of the
cumulative total of the community supervision periods.6 This is incorrect. The
ten-year limitation measures the cumulative total of the community
supervision periods, not the terms of confinement that were assessed and then
probated. See Ewing v. State, 157 S.W.3d 863, 870 (Tex. App.—Fort Worth
2005, no pet.). As the Fourteenth Court of Appeals explained when
harmonizing article 42.08 with section 3.03 of the Penal Code,
it is the community supervision terms that are being
cumulated, not the sentences. Therefore, if a jury in a single
criminal action were to give probation for two felony convictions,
the trial court should be authorized under these rules to make
those terms concurrent or to “stack” them for a total of up to 10
years' community supervision.
Mireles v. State, 444 S.W.3d 679, 684 n. 4 (Tex. App.—Houston [14th Dist.]
2014, pet. ref’d) (quoting George E. Dix & John M. Schmolesky, Texas Practice
Series: Criminal Practice and Procedure § 38:38 (3d ed. 2011) (footnotes
omitted) (emphasis added)).
Here, the trial court lawfully cumulated the probated sentence in Count
Two with the completion of the final prison sentence in Count Eight. See
Mireles, 444 S.W.3d at 680, 680-81, 684. We overrule Travis’s request to delete
6 The State suggests that we make these sentences comply with article 42.08 by deleting only the
cumulation orders in counts three and four, thereby “causing both of those two-year probationary sentences to run concurrently with the five-year consecutive probationary sentences in Counts 2 and 9,” believing that Travis’s “total probationary term would then be ten years, rather than 14 years, which would comply with Article 42.08.”
Clark Aaron Travis v. The State of Texas Page 27 the cumulation order in Count Two. However, the trial court unlawfully
imposed suspended sentences totaling forty years by cumulating Counts
Three, Four, and Nine. We sustain Travis’s issue as to Counts Three, Four,
and Nine. We reform the judgments in Counts Three, Four, and Nine to delete
their respective cumulation orders and order those counts to run concurrently
with the probated sentence in Count Two.
Conclusion
We affirm the trial court’s judgments in Count One, Count Two, Count
Five, Count Six, Count Seven, and Count Eight. Having sustained Travis’s
third issue, in part, we reform the judgments in Count Three, Count Four, and
Count Nine to delete their respective cumulation orders, and we affirm those
judgments as modified.
STEVE SMITH
Justice
OPINION DELIVERED and FILED: September 30, 2026
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed as modified
Do Not Publish
CRPM
Clark Aaron Travis v. The State of Texas Page 28