In The
Court of Appeals
Ninth District of Texas at Beaumont
NO. 09-24-00300-CR
CHRISTOPHER ANDRE NEVILLE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause Nos. F21-37104
MEMORANDUM OPINION
Christopher Andre Neville was indicted for continuous sexual abuse of a
child, a first-degree felony. See Tex. Penal Code Ann. § 21.02. The jury convicted
Neville and assessed his sentence at forty years of incarceration in the Texas
Department of Criminal Justice.
On appeal, Neville presents thirteen issues for our review in which he
challenges the trial court’s evidentiary rulings regarding testimony and exhibits. His
1
complaints fall into several broad categories, including hearsay, speculation, and
relevancy. We affirm the trial court’s judgment.
Background
Several witnesses testified at trial, but we will discuss only the background
facts necessary for the determination of the issues on appeal. See Tex. R. App. P.
47.1 (requiring us to hand down an opinion as brief as practicable that addresses all
issues raised and necessary to the appeal’s final disposition). Neville’s indictment
alleged the following:
CHRISTOPHER ANDRE NEVILLE, hereafter styled the
Defendant, in Jefferson County, Texas, during a period that was thirty
(30) or more days in duration, to-wit: from on or about 16TH day of
JUNE, TWO THOUSAND AND NINETEEN through on or about the
6TH day of SEPTEMBER, TWO THOUSAND AND NINETEEN, and
anterior to the presentment of this indictment, when the Defendant was
17 years of age or older, did then and there commit two or more acts of
sexual abuse against [Kaci], a child younger than 14 years of age,
namely, Indecency with a Child under Texas Penal Code Section
21.11(a)(1 ), namely:
The Defendant with the intent to arouse or gratify the sexual
desire of any person, did then and there touch the genitals of
[Kaci], and
The Defendant with the intent to arouse or gratify the sexual
desire of any person, did then and there touch [Kaci] with the
Defendant’s genitals[.] 1
1
We use a pseudonym to protect the privacy of the victim and her family in this case. See Tex. Const. art. 1, § 30 (protecting crime victims’ “right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”).
2
At trial, Beaumont Police Officer Jacob Froman testified that on September
7, 2019, he was dispatched to a domestic disturbance between a husband and wife.
When he arrived, he encountered Mother who told Froman information regarding
Kaci. Over Neville’s objection, the trial court admitted a copy of Froman’s body
camera footage which was played for the jury with a limiting instruction. Froman
testified that Mother told him about sexual abuse of her seven-year-old daughter,
Kaci. Froman did not speak to Kaci but verified that she was safe with Mother.
Mother told Froman that Neville was on drugs. Mother told Froman about two
incidents of “indecency with a child[]” including one that happened after Kaci’s
birthday in June. Mother told Froman that Kaci was touched by Neville over-theclothes genital-to-genital contact, and over-the-clothes finger to genital contact.
Mother told him that Kaci specifically said Neville’s “middle part[.]” Froman
explained that he spoke to another officer who told Froman that based on Kaci’s
accusations he wanted to do a report, notify CPS, get a sexual assault nurse
examination, and have her interviewed at Garth House. Froman found Neville hiding
behind the AC unit outside the home, but he did not arrest Neville that night.
Darrell Lebeouf
Beaumont Police Detective Darrell Lebeouf was the on-call detective that
night. He testified that he received a call “in reference to a 7-year-old child that had
made an outcry to her mother that she had been inappropriately touched by her
3
father.” Lebeouf later investigated the allegations, and his investigation uncovered
two acts of sexual abuse that were thirty days or more apart and occurred between
June 15, 2019 and August 2019. Based on the information gathered during his
investigation, he determined probable cause existed to charge Neville with
continuous sexual abuse of a child.
Dana Hebert
Next, the State called Sexual Assault Nurse Dana Hebert. Hebert explained
her educational and professional background, the duties of a Sexual Assault Nurse,
and how to conduct a Sexual Assault Nurse Examination (SANE). Hebert conducted
a SANE on Kaci in the early morning hours of September 7, 2019, in the hospital.
A copy of Hebert’s sexual assault forensic report from Kaci’s examination was
admitted at trial over Neville’s objections. The report included a written narrative
about her patient history from Kaci regarding the assault, including Kaci’s telling
Hebert, “He put his middle part on my middle part. I had my clothes on, but he didn’t
have his clothes on.” She also related what Mother told her that day:
Spoke with mother[.] She reports that she was told this has happened
five times. The first was after [Kaci’s] birthday [in June 2019]. Law
enforcement came and had Christopher Neville leave and that he cannot
be there for the next 24 hours, but then can return. Then reports the kids
are scared of him.
4
Mother
Mother testified that she has three children, including “Kris” and Kaci, who
are Neville’s biological children. Mother described her marriage as deteriorating
before Kaci’s outcry, testifying that Neville used drugs and was verbally, and
sometimes physically, abusive. Neville objected to the testimony on the grounds that
it was irrelevant and more prejudicial than probative. The trial court overruled the
objections and gave the jury a limiting instruction. Mother stated that towards the
end of 2019, she and Neville were separated and getting divorced. She testified Kaci
was afraid of Neville, explaining,
I mean, the majority of whippings are -- were normal. I can kind of tell
when it wasn’t normal because I do remember him -- I was, like, you
have to get [Kaci]. She’s out of control. She’s out of control. And I
guess he got tired of me telling him. And he literally -- he says, ‘This is
why I don’t like doing this,’ and he literally grabbed [Kaci] by her arms
and body slammed her.
Mother spoke to the police after Kaci’s outcry. Before Mother called the
police, she recalled that two incidents occurred on the night of September 6, 2019.
First, when Kaci was bathing, Neville was in the bathroom cleaning up and gave
Kaci a look that scared her. Mother stated that to her knowledge, it was abnormal
for Neville to be around Kaci when she was naked at that age. Later that night, while
Mother slept, Kaci knocked on her door and woke her up. She described Kaci as
“very anxious and scared.” Kaci told Mother that Neville had “been coming in her
room and putting his middle part on her middle part.” Kaci told Mother she was
5
scared, and Mother asked her if she was sure and how long it had been going on.
Mother then called Kaci’s older brothers into the room and asked if anything had
happened to them, which both brothers denied.
Mother confronted Neville that night. She testified that Neville “wasn’t
surprised.” She reached this conclusion “[b]ecause [of] the response he gave me:
‘You can just have full custody.’ It’s not: ‘Oh, no. I didn’t do that. I would never do
that to my child.’ ‘You can just have full custody. I’m not going to go through that.’”
After this conversation, Mother and her children locked themselves in the same
room, and Mother called the police. Kaci told Mother about times she was abused
right after her birthday in June 2019 and a school event in August or September
2019. Mother denied that Kaci’s outcry had anything to do with her divorce or an
attempt to get custody of her children.
After Kaci’s outcry, she attended counseling at Garth House. Mother recalled
that she pulled Kaci out of counseling because she had a problem talking about what
happened, and “I just couldn’t see her go through that.” Mother also recalled that in
the summer of 2019, she found Neville naked in Kaci’s bed, but Kaci was not in her
room and was on the floor by her brother.
Kim Hanks
Kim Hanks works as a program director of the Forensic Interviewing Program
in the Family Advocacy Program at the Garth House Child Advocacy Center. Kaci
6
was interviewed at Garth House after her outcry, and Hanks observed the interview
before she attended court. Hanks testified that it appeared Kaci resisted giving all
the details of her abuse during her session. “I felt like she went around the actual
subject of the actual abuse, body parts, went around it and discussed a lot of the
details around it. But then [the forensic examiner] had to come back in again and ask
more pointblank detailed questions.”
Several other witnesses testified at trial, including Kaci. Due to the limited
issues on appeal, we need not address their testimony.
At the conclusion of trial, the jury convicted Neville of aggravated sexual
assault of a child, and after a separate trial on punishment, the jury sentenced him to
forty years of incarceration in the Texas Department of Criminal Justice. Neville
timely appealed.
Standard of Review
We use an abuse-of-discretion standard to review a trial court’s decision to
admit or exclude evidence. See Irsan v. State, 708 S.W.3d 584, 611 (Tex. Crim. App.
2025). A trial court abuses its discretion if its decision is outside the zone of
reasonable disagreement. See id. at 616. If the trial court’s evidentiary ruling is
correct on any theory of law applicable to the case, that ruling will not be disturbed
on appeal even if the trial judge gave the wrong reason for the correct ruling. De La
7
Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009). This standard of review
applies to each issue Neville raises on appeal.
Issues One through Five: Hearsay
In his first five issues, Neville challenges the trial court’s evidentiary rulings
regarding hearsay. Hearsay is an out-of-court statement that is offered to prove the
truth of the matter asserted in the statement. See Tex. R. Evid. 801(d). Hearsay is
inadmissible except as provided by statute, the rules of evidence, or by other rules
prescribed under statutory authority. See id. 802. Once the opponent of hearsay
evidence properly objects, it becomes the proponent’s burden to establish that an
exception applies that would make the evidence admissible despite its hearsay
character. See Taylor v. State, 268 S.W.3d 571, 578-79 (Tex. Crim. App. 2008).
“When hearsay contains hearsay, the Rules of Evidence require that each part of the
combined statements be within an exception to the hearsay rule.” Sanchez v. State,
354 S.W.3d 476, 485-86 (Tex. Crim. App. 2011); see Tex. R. Evid. 805. We review
a trial court’s hearsay rulings for abuse of discretion. See Elsik v. State, 714 S.W.3d
27, 34 (Tex. Crim. App. 2026).
Issue One
In issue one, Neville argues that the trial court committed reversible error
when it admitted Froman’s body camera footage which contained conversations
8
between Froman and his patrol sergeant and between Froman and Mother both of
which Neville argues constituted inadmissible hearsay.
When the State presented the body camera footage at trial, Neville objected
on the grounds of hearsay and relevance for “conversations between Officer Froman,
another officer, and [Mother] talking.” The trial court, after first overruling the
objection, held a hearing outside the jury’s presence. The trial court then sustained
Neville’s objection as to the conversations between Froman and the patrol sergeant,
but overruled Neville’s objections regarding the conversation between Froman and
Mother, stating, “This is the very essence of an excited utterance, plus it’s divulging
an outcry statement that is also admissible.” The trial court also gave the jury a
limiting instruction regarding the evidence.
Although hearsay is generally inadmissible, Texas Code of Criminal
Procedure article 38.072 provides an exception for an outcry statement made by a
minor describing an offense, such as continuous sexual abuse of a child, if the outcry
is the first such statement to a person over the age of 18, and if certain statutory
conditions are met such as notice, a hearing, and the minor’s availability to testify at
trial. See Tex. Code Crim. Proc. Ann. art. 38.072. Appellant does not argue these
conditions were not met in this case, and we cannot say the trial court abused its
discretion in deciding that Kaci’s statement to Mother, which was otherwise hearsay,
was an admissible outcry statement under article 38.072.
9
Texas Rule of Evidence 803(2) provides an exception allowing for the
admission of hearsay if the statement “relat[es] to a startling event or condition,
made while the declarant was under the stress of excitement that it caused.” Tex. R.
Evid. 803(2). This excited-utterance exception is based on the principle that when a
declarant makes such a statement, the declarant is incapable of the kind of reflection
that would enable the declarant to fabricate information. Apolinar v. State, 155
S.W.3d 184, 186 (Tex. Crim. App. 2005). To determine whether a statement is an
excited utterance, courts must determine whether the declarant was still dominated
by the emotions, excitement, fear, or pain of the event or condition. Id. (citations
omitted). “[U]nder the excited-utterance exception, the startling event may trigger a
spontaneous statement that relates to a much earlier incident.” McCarty v. State, 257
S.W.3d 238, 240 (Tex. Crim. App. 2008).
The event triggering an excited utterance and the event it describes may be
separated by days or even months. See Hunt v. State, 904 S.W.2d 813, 815-16 (Tex.
App.—Fort Worth 1995, pet. ref’d). The startling event itself need not be the crime.
See id. at 816; see also McCarty, 257 S.W.3d at 239. For example, in Hunt, a child’s
statement concerned an incident of abuse that occurred three months prior to the
outcry. 904 S.W.2d at 815. The child made the statement after watching a news story
on television that caused her great concern and fear regarding her own sexual abuse.
See id. The court of appeals held that despite the three-month intervening passage of
10
time, the startling nature of the television program and the victim’s demeanor during
her outcry rendered the statement sufficiently reliable to fall under the excitedutterance hearsay exception. Id. at 816–17. In determining whether a statement falls
under the excited-utterance exception, we consider the following non-dispositive
factors:
(1) whether the exciting event is startling enough to evoke a truly
spontaneous reaction from the declarant;
(2) whether the reaction to the startling event is quick enough to avoid
the possibility of fabrication;
(3) whether the resulting statement is sufficiently “related to” the
startling event to ensure the reliability and trustworthiness of the
statement; and
(4) whether the statement was made in response to a question.
Pickron v. State, 515 S.W.3d 462, 465 (Tex. App.—Houston [14th Dist.] 2017, pet.
ref’d) (citing McCarty, 257 S.W.3d at 241; Salazar v. State, 38 S.W.3d 141, 154
(Tex. Crim. App. 2001)).
The statements at issue related to Neville’s behavior—actions which
frightened Kaci to a point where she was afraid to be alone with Neville. Kaci told
her Mother that Neville’s “middle part” touched her “middle part” and Mother
confronted Neville who, according to Mother, did not deny abusing Kaci. Mother in
turn locked herself and her children in her bedroom and called the police. As the trial
court noted, the body cam footage shows “what is happening at the moment of -- the
11
very moment that the police are entering into the investigation upon a – immediately
or soon after the call of the report of an alleged serious sexual abuse allegation
against a child.” Taking these factors into consideration, they support the admission
of the statements as excited utterances. See Pickron, 515 S.W.3d at 465. The startling
event triggering Kaci’s statements and Neville’s presence at home and subsequent
barricade in Mother’s bedroom showed the thought of being alone with Neville was
exceptionally traumatic. Like Hunt, the events immediately preceding Kaci’s
statements to Mother were sufficiently shocking and startling, and Mother’s
demeanor was sufficiently disturbed rendering Mother’s statements to Froman
reliable as excited utterances. See Hunt, 904 S.W.2d at 815-17. We conclude the trial
court did not abuse its discretion in determining Mother’s statements to Froman were
excited utterances and admitting the statements into evidence as an exception to the
rule against hearsay. See McCarty, 257 S.W.3d at 241; see also Irsan, 708 S.W.3d
at 611; Elsik, 714 S.W.3d at 34. We overrule Neville’s first issue.
Issues Two and Three
Next, Neville challenges Lebeouf’s testimony. In his second issue, he argues
that the trial court erred by allowing Lebeouf to testify regarding his conversation
with Froman, and in his third issue, he argues that Lebeouf’s testimony in which “he
made determinations concerning the time frame” of the assaults was based upon
hearsay, and, therefore, inadmissible.
12
Lebeouf testified that around 2:00 a.m. on September 7, 2019, “[t]he officer
called me and said that he was on a call in reference to a 7-year-old child that had
made an outcry to her mother that she had been inappropriately touched by her
father.” Neville objected to the testimony as hearsay and repetition, and the State
argued the testimony was “information is to help aid the jury in understanding what
the detective’s next steps were in his investigation.” The trial court overruled the
objection, finding the testimony could “be considered by the jury for that purpose
only. Not for the truth but for an understanding of why the officer took the next steps,
how he responded to those -- that information. And for no other purpose.” Later,
Lebeouf testified regarding his determination of the timeline of events, and the
defense objected to it as hearsay. The State countered, telling the trial court that
Lebeouf’s testimony was offered not for the truth, but “to explain how this detective
made the determination of 30 days or more in duration[,]” and the evidence will be
“supplanted with further testimony[,]” by other witnesses. The trial court overruled
the objection, explaining, “It’s how he determined that period of time, what he used
to determine. Again, the jury shall give the credibility and weight they feel it
deserves. The State has also said that will be – that evidence will be supplanted with
further testimony.”
Generally, an investigating officer may testify to how a defendant became a
suspect in an investigation without such testimony constituting hearsay. See Dinkins,
13
894 S.W.2d 330, 347 (Tex. Crim. App. 1995); Lyle v. State, 418 S.W.3d 901, 904
(Tex. App.—Houston [14th Dist.] 2013, no pet.). However, the officer’s testimony
cannot, through artful questioning, be offered to prove the veracity of his
investigation. Schaffer v. State, 777 S.W.2d 111, 114 (Tex. Crim. App. 1989). Such
a sequence of questioning and answering may constitute impermissible hearsay
“where there is an inescapable conclusion that a piece of evidence is being offered
to prove statements made outside the courtroom[.]” Id.; Head v. State, 4 S.W.3d 258,
261 (Tex. Crim. App. 1999) (“Whether the disputed testimony violates the hearsay
prohibition necessarily turns on how strongly the content of the out-of-court
statement can be inferred from the context.”).
A police officer “should not be permitted to relate historical aspects of the
case, replete with hearsay statements in the form of complaints and reports on
grounds that []he was entitled to tell the jury the information upon which []he acted.”
Schaffer, 777 S.W.2d at 115 (citations omitted). In Schaffer, the Texas Court of
Criminal Appeals explained, “In short, ‘statement’ as defined in [Rule 801]
necessarily includes proof of the statement whether the proof is direct or indirect.”
Id. at 114 (emphasis in original).
Here, Lebeouf did not repeat Kaci’s allegations for the truth of the matter
asserted but instead explained that the timelines of the purported abuse allegedly
spanned greater than thirty days, which established probable cause for their
14
investigation of continuous sexual abuse of a child. Additionally, Lebeouf confirmed
through his testimony that this was part of his investigation and involved the need to
verify Mother’s report that Kaci outcried against Neville. We are unpersuaded that
the prosecutor’s line of questioning and Lebeouf’s responses indicate that the State
intended to prove the truth of Kaci’s statements. See id.; Head, 4 S.W.3d at 262–63.
The record reflects that the statements were admitted to explain the steps of
Lebeouf’s investigation including determining whether Mother had fabricated the
allegations against Neville and whether Kaci had actually made an outcry to Mother
about Neville, so that Lebeouf could determine whether he needed to move forward
with his investigation of Kaci’s allegations. See Dinkins, 894 S.W.2d at 347. The
record does not reveal an inescapable conclusion that Lebeouf’s testimony was
offered to prove that Kaci’s allegations against Neville were true. See Head, 4
S.W.3d at 262-63 (whether the disputed testimony violates the hearsay prohibition
turns on whether the strength of the inference produces an “inescapable conclusion”
that the evidence is being offered to prove the substance of an out-of-court
statement); Schaffer, 777 S.W.2d at 115 (recognizing the admissibility an officer’s
hearsay statements have and that are necessary for the jury’s understanding of the
events and that are not introduced for the truth of any implications). The trial court
did not abuse its discretion in admitting Lebeouf’s testimony because it could have
reasonably concluded that the evidence had a purpose other than to prove the truth
15
of the matter stated, such as describing what precipitated the investigation and how
Neville became a suspect. See Head, 4 S.W.3d at 262; Schaffer, 777 S.W.2d at 115.
Even if the trial court had erroneously admitted the testimony, there would be
no reversible error because Kaci later testified without objection that Neville
sexually abused her, including the timeframe of the abuse. See Marshall v. State,
210 S.W.3d 618, 631 (Tex. Crim. App. 2006) (any error in the admission of the
complained-of evidence was harmless because the record established that essentially
the same evidence was admitted elsewhere in the record without objection); Gant v.
State, 153 S.W.3d 294, 300 (Tex. App.—Beaumont 2004, pet. ref’d) (where
erroneous admission of evidence is cumulative of other properly admitted evidence
proving the same fact, the erroneous admission is harmless); see also Tex. R. App.
P. 44.2(b) (requiring courts to disregard non-constitutional errors that do not affect
a party’s substantial rights). We overrule Neville’s second and third issues.
Issue Four
In his fourth issue, Neville argues that the trial court erred when it admitted a
copy of the SANE report over his objection. At trial, Neville objected to pages 6 and
7 of State’s exhibit 6, the SANE nurse’s report, the written recitation of the patient’s
history. The State responded that the document was subject to medical exception
under the hearsay rule. The trial court overruled the objection finding the document
was subject to the hearsay exception “Rule 803, subpart 4, statements for purposes
16
of medical diagnosis or treatment[.]” On appeal, Neville argues that the “report
contained assumptions of what the alleged victim meant when she spoke to her, and
what the nurse inferred from the conversations.” According to Neville, the SANE
examiner’s testimony showed that she went beyond medical diagnosis and testified
she was collecting “evidence[,]” and this is not an exception to the hearsay rule
because the “substance of her testimony admittedly went beyond information for
treatment, and related to law enforcement purposes instead.”
As this Court recently explained in Potter v. State,
There are several exceptions to hearsay, including an exception for “[a]
statement that: (A) is made for—and is reasonably pertinent to—
medical diagnosis or treatment; and (B) describes medical history; past
or present symptoms or sensations; their inception; or their general
cause.” Tex. R. Evid. 803(4). This exception presumes that the patient
understands the importance of being truthful with the medical
personnel involved to receive an accurate diagnosis or treatment. See
Puderbaugh v. State, 31 S.W.3d 683, 685 (Tex. App.—Beaumont
2000, pet. ref’d); Franklin v. State, 459 S.W.3d 670, 676 (Tex. App.—
Texarkana 2015, pet. ref’d); Beheler v. State, 3 S.W.3d 182, 188 (Tex.
App.—Fort Worth 1999, pet. ref’d). For statements to be admissible
under Rule 803(4), the proponent of the evidence must show that: (1)
the declarant was aware that the statements were made for the purposes
of medical diagnosis or treatment and that proper diagnosis or treatment
depended on the veracity of the statement; and (2) the particular
statement offered is also “pertinent to treatment[;]” that is, it was
reasonable for the healthcare provider to rely on the particular
information in treating the declarant. See Taylor, 268 S.W.3d at 589,
591; Hanke v. State, No. 09-14-00326-CR, 2015 Tex. App. LEXIS
9884[,] at *18 (Tex. App.—Beaumont Sept. 23, 2015, no pet.) (mem.
op., not designated for publication) (citing Taylor, 268 S.W.3d at 588-91; Mbugua v. State, 312 S.W.3d 657, 670-71 (Tex. App.—Houston
[1st Dist.] 2009, pet. ref’d)); Prieto v. State, 337 S.W.3d 918, 921 (Tex.
App.—Amarillo 2011, pet. ref’d).
17
No. 09-21-00386-CR, 2024 Tex. App. LEXIS 1652, at *24 (Tex. App.—Beaumont
Mar. 6, 2024, pet. ref’d) (mem. op., not designated for publication).
Hebert testified “our primary purpose when seeing a patient is that we are
there to medically examine them, make sure that they’re medically okay.” She stated
that she meets with the child to take a patient history before she has any encounters
with anyone else. She also testified that she sometimes does not receive a referral
statement. She explained that the history is obtained “word for word what [the
patient] says. We ask open-ended questions[,]” and she takes that patient history to
form her medical diagnosis. Hebert explained that it is important to note whether the
patient has washed, wiped, or brushed her teeth before the examination, due to the
evidence collection and if any fluids collected from the patient will be used in
evidence collection.
This Court and others have previously rejected similar arguments. See e.g.,
Berkley v. State, 298 S.W.3d 712, 715 (Tex. App.—San Antonio 2009, pet. ref’d)
(holding that statements made by sexual assault victim to a SANE nurse, which were
included in medical records, were not testimonial because statements were made for
purpose of medical diagnosis and treatment); Beheler v. State, 3 S.W.3d 182, 188
(Tex. App.—Fort Worth 1999, pet. ref’d) (concluding the trial court did not err in
admitting the statements the victim made to a sexual assault nurse about the assault
under Rule 803(4)); see also Green v. State, No. 09-15-00220-CR, 2017 Tex. App.
18
LEXIS 598, at *7-8 (Tex. App.—Beaumont Jan. 25, 2017, no pet.) (mem op., not
designated for publication) (the trial court did not abuse its discretion concluding
that the nurse’s testimony and report were admissible over Green’s hearsay
objections under Rule 803(4) of the Texas Rules of Evidence).
We conclude that the records in question fit within Rule 803(4)’s medical
exception. See Taylor, 268 S.W.3d at 589 (explaining analyzing records admitted
under 803(4), “it seems only natural to presume that adults, and even children of a
sufficient age or apparent maturity, will have an implicit awareness that the doctor’s
questions are designed to elicit accurate information and that veracity will serve their
best interest[]”); see also Ramos v. State, No. 13-22-00293-CR, 2023 Tex. App.
LEXIS 9546, at *45-46 (Tex. App.—Corpus Christi-Edinburg Dec. 21, 2023, no
pet.) (mem. op. not designated for publication) (no evidence in the record, besides
the SANE’s testimony that she “collect[s] evidence[,]” to show a bias in the
collection of evidence or that the victim was untruthful in her statements during the
examination). We reject Neville’s argument that Hebert was merely collecting
evidence to be turned over to law enforcement.
As demonstrated by Hebert’s testimony in this case, and by the contents of
her report, the purpose of the exam was for diagnosis and treatment. The trial court
could have reasonably concluded that Kaci’s statements during the SANE
examination were reasonably pertinent to diagnosis and treatment. See Prieto v.
19
State, 337 S.W.3d 918, 921 (Tex. App.—Amarillo 2011, pet. ref’d). Because the
statements were made for the purposes of medical diagnosis and treatment, we
conclude that the trial court did not abuse its discretion by overruling the objection
and admitting the SANE records and testimony into evidence. See Beheler, 3 S.W.3d
at 189. We overrule issue four.
Issue Five
In his fifth issue, Neville argues the trial court erred by admitting testimony
from Mother “concerning hearsay statements of the child while she was in
counseling.” Specifically, testimony that Kaci “freaked out” and that counseling was
too much for her.
At trial, Neville objected to Mother’s testimony regarding Kaci’s reaction to
counseling after her outcry on relevance and hearsay grounds. In overruling the
objection, the trial court stated the following:
All right. Well, it -- the theory of the State is that this is wrapped
up within the context of the crime itself and that the jury is entitled to
determine whether the complainant is indeed victimized in this case,
that the crime actually was committed.
Y’all challenged it and pleaded not guilty, which you have a right
to, and they have a right to show any evidence that can be relevant to
help the jury determine if a crime was actually committed or not. And
the responses made by complainants are relevant. How they respond to
alleged actions can be part of the equation and the jury analyzing the
facts of the case. Overruled. Go ahead.
20
At defense counsel’s request, the trial court instructed the jury on admissibility and
the burden of proof.
Error preservation is a systemic requirement and must be reviewed by an
appellate court, even when the issue is not raised by the parties. Bekendam v. State,
441 S.W.3d 295, 299 (Tex. Crim. App. 2014). Texas Rule of Appellate Procedure
33.1 governs error preservation. See Tex. R. App. P. 33.1. A party cannot present a
complaint for appellate review unless the record shows that the party timely objected
or made a motion stating the grounds for the requested ruling, unless the grounds
were apparent from the context. Id. 33.1(a)(1)(A); see Null v. State, 690 S.W.3d 305,
318 (Tex. Crim. App. 2024). A party must also obtain a ruling from the trial court
or object to the trial court’s refusal to rule on the objection. Tex. R. App. P.
33.1(a)(2); Null, 690 S.W.3d at 318. Requiring a timely, specific objection serves
two purposes: (1) it informs the judge of the basis of the objection and gives him a
chance to rule; and (2) it provides opposing counsel an opportunity to respond to the
complaint. Null, 690 S.W.3d at 318; Williams v. State, 662 S.W.3d 452, 460 (Tex.
Crim. App. 2021) (citation omitted).
Here, although the trial court overruled Neville’s relevance objection, Neville
did not obtain a ruling on his hearsay objection. Without a ruling, the hearsay
objection preserved nothing for our review on appeal. See Tex. R. App. P.
33.1(a)(1)(A); Null, 690 S.W.3d at 318. We overrule his fifth issue.
21
Issues Six through Nine: Speculation
In his next four issues, Neville complains that the trial court erred by admitting
speculative testimony from various witnesses.
Texas Rules of Evidence 602 and Rule 701 apply when a party objects that
the testimony sought is speculative. See Tex. R. Evid. 602, 701; Solomon v. State,
49 S.W.3d 356, 364-65 (Tex. Crim. App. 2001); Turro v. State, 950 S.W.2d 390,
403 (Tex. App.—Fort Worth 1997, pet. ref’d). Rule 602 requires that a witness have
personal knowledge of the matter on which he or she is testifying. Tex. R. Evid. 602.
Rule 701 allows a lay witness to express an opinion when the opinion is rationally
based on the witness’s perception and is helpful to the jury’s understanding of the
witness’s testimony or to the jury’s determination of a fact at issue in the case. See
id. 701; Osbourn v. State, 92 S.W.3d 531, 535 (Tex. Crim. App. 2002).
The first prong of Rule 701 requires a witness to rationally base his or her
testimony on what he or she perceives. See Tex. R. Evid. 602, 701; Solomon, 49
S.W.3d at 364-65; Fairow v. State, 943 S.W.2d 895, 897 (Tex. Crim. App. 1997).
The personal knowledge of the events forming the basis of the witness’s opinion
may come directly from what the witness sees, hears, or smells, or otherwise from
the witness’s experience. Osbourn, 92 S.W.3d at 535; Fairow, 943 S.W.2d at 898.
An opinion is rationally based on a witness’s perception if the opinion is one a
reasonable person could have drawn under the circumstances. Fairow, 943 S.W.2d
22
at 900. The second prong of Rule 701 requires that the witness’s opinion be helpful
to the trier of fact. See Tex. R. Evid. 602, 701; Solomon, 49 S.W.3d at 364. There is
no “bright line” test indicating when an opinion is helpful. Fairow, 943 S.W.2d at
900. “This consideration is especially prudent when the opinion concerns culpable
mental state.” Id.
Issues Six and Seven
In his sixth issue, Neville argues the trial court erred by allowing Froman to
speculate as to what Kaci meant by referencing her “middle part[,]” to Mother and
that he believed it to be genitalia. Similarly, Neville argues that Hebert’s testimony
about what Kaci meant when she said “middle part” during her forensic interview
was erroneously admitted speculation. Neville contends that witnesses were not
qualified to provide such opinions and that such speculation was inadmissible. “The
prosecutor was allowed to elicit improper opinions and conjecture that necessarily
relied on speculation. Appellant made pointed objections to the complained-of
evidence.”
Froman’s testimony was as follows:
[THE STATE]: Officer Froman, when -- in your experience, would you
expect a 7-year-old child to describe a male’s genitals as their middle
part or a penis?
A. As a middle part.
[DEFENSE COUNSEL]: Your Honor, object to speculation.
23
THE COURT: Overruled. He can answer that if it’s -- the question is
asked to him. He can answer that. And he can draw reasonable
inferences from the statements of witnesses, just like this jury can. Go
ahead.
Q. [THE STATE]: So, were you trying to put words in someone’s
mouth when you used the word “penis” or the word “genitals” when
you were talking to [Mother]?
A. No, sir.
Q. Would you have done that if you were talking to [Kaci]? Would you
have used those kind of more sophisticated or adult-like words?
A. No, sir.
Q. So, when [Mother] told you that [Kaci] had reported her middle part
being touched by her father’s middle part, did you make an inference
that she was talking about either genitals or penis to genitals contact?
A. Yes, sir.
Q. And do you have any, I guess, concern with that inference looking
back on it now?
A. No. I still stand by what I said. That’s what I interpreted her meaning.
Maybe I should have asked a little bit more further questions, but I was
under the impression that it was genital-to-genital contact.
Froman reiterated during cross-examination that he would not change his
interpretation now.
During her testimony, Hebert stated the following:
[THE STATE]: Okay. So, do you -- the description of what specifically
the child was reporting kind of towards the end here, the child uses the
term “middle part.”
A. Yes.
24
Q. Is that a term that is consistent with the vocabulary of 7-year-old child, in your experience?
A. Yes.
Q. When the child explained “middle part,” did it appear to you based on what she was explaining to you in that exam room that she was talking about her genitals or her sexual organ?
[DEFENSE COUNSEL]: Objection –
A. Yes.
[DEFENSE COUNSEL]: -- speculation, your Honor.
THE COURT: Do you know the answer to that?
THE WITNESS: I assumed that that is what she was saying.
THE COURT: You’re drawing a reasonable inference from what’s
being said?
THE WITNESS: Well –
THE COURT: Is that -- is that –
THE WITNESS: I’m not –
[THE STATE]: Here’s what I -- let me back up a little bit.
Q. [THE STATE]: I don’t want you to assume; but if you inferred that from what she told you, then I do want to know that.
A. I understood -- I mean, I would be honest, if I say your middle part, talking about your body’s anatomy, what is your middle part on your body? The central middle part of your body. A child is not going to tell me that “He put his penis in my vagina.” That’s not something that would be said by a child this age. They would infer –
25
Q. Would that be something unusual for a 7-year-old –
A. Absolutely.
Q. -- child to tell you?
A. Yes. A lot of times they’ll have different names for that part. And
for her, it would have been -- I mean, when she says his middle part on
my middle part, that is the context that I take that, that it’s –
THE COURT: Overruled.
A. -- the middle part.
THE COURT: She’s experienced in her job, and she can draw
reasonable inferences from the statements of witnesses. So can the jury
in analyzing the evidence in this case. Go ahead.
The trial court could have reasonably concluded that Froman’s opinion was
rationally based on his perception and experience, and his interpretation was helpful
to the jury. See Tex. R. Evid. 602, 701; Solomon, 49 S.W.3d at 364; Fairow, 943
S.W.2d at 898-99. Testimony is helpful when it either helps the jury understand the
witness’s testimony or determine a fact in issue. Fairow, 943 S.W.2d at 900. Because
the trial court’s ruling was within the zone of reasonable disagreement, we cannot
conclude that the trial court abused its discretion in allowing this testimony, and we
overrule Neville’s sixth issue. See Irsan, 708 S.W.3d at 611; Elsik, 714 S.W.3d at
34.
Turning to Hebert’s testimony, the State established Hebert’s credentials as a
Sexual Assault Nurse Examiner and what her process and procedures are for
26
conducting a SANE examination. Neville did not challenge Hebert on her
qualifications. Hebert’s testimony that she inferred Kaci was discussing genitals
when referencing “middle part” was admissible not only as lay witnesses testimony
rationally based on perception, but also as expert testimony based on her experience
with children and SANE examinations. Id., Fairow, 943 S.W.2d at 903. The trial
court did not abuse its discretion by admitting her testimony. We overrule Neville’s
seventh issue.
Issue Eight
In his eighth issue, Neville complains the trial court erred by allowing Mother
“to interpret a particular ‘look’ of appellant with her speculative conclusion that he
made a threat to kill [Kaci].” Neville argues that at trial Mother testified that she
found Neville in the bathroom while Kaci was taking a bath and that Neville looked
at Kaci “as if to say ‘If you say something, I’m going to kill you.’” The following
exchange occurred when Mother was questioned by the State about what prompted
Mother to call the police that night:
Q. [THE STATE]: So, we’ve already heard from that officer, but talk
to us a little bit about what you remember specifically prompting why
you called the police that night.
A. I was laying in bed, and we had already had a situation earlier. So, I
guess, after hearing -- after me talking to her again, she came in my
room. I was knocked out asleep.
27
Q. Okay. So, if it’s okay with you, I’m going to stop you and ask followup questions about certain things that you -- information you give us. Okay?
A. Okay.
Q. So, you said that, “We already had a situation earlier.” What do you mean by that?
A. So, I remember her being in the bathroom, and I remember he was cleaning up. And while she was in the bathroom, she just looked scared. She just -- I mean, she just -- I’m like, “What’s going on? Are you okay?” Remember, we already had these conversations. Now, why are you cleaning in the bathroom while she’s taking a bath? I don’t
understand it. But he was in there, that look that he gave her like, “If you say something, I’m going to kill you.”
Q. So –
A. And she just -- she was just froze like -- so, after having that conversation –
Q. Hold one second.
A. Uh-huh.
Q. So, her is -- are you talking about [Kaci]?
A. [Kaci].
Q. And him, are you talking about Chris Neville?
A. Correct.
[DEFENSE COUNSEL]: Judge, object to speculation.
THE COURT: Overruled. She -- she’s intimately familiar with who
she’s talking about or what her intent was in reference to identifying people. Overruled. Go forward.
28
Q. [THE STATE]: Are you familiar with the facial expressions of your
daughter?
A. Yes.
Q. Are you able to tell when your daughter is afraid?
A. I am.
Q. Same with Chris Neville, are you familiar with Chris Neville’s facial
expressions?
A. Yes.
Q. Are you able to tell when Chris Neville is angry or threatening?
A. Yes.
We have already discussed the requirement for a timely, specific objection in
issue five above. Neville did not make his objection based on the alleged speculation
until after Mother testified about what she observed. He only objected when asked
to identify who she was discussing. As a result of his untimely objection, Neville
failed to preserve his complaints for appellate review. See Tex. R. App. P.
33.1(a)(1)(A); Null, 690 S.W.3d at 318. We will not address the merits of issues
when the issues have not been preserved for appeal. See Tex. R. App. P.
33.1(a)(1)(A). We overrule Neville’s eighth issue.
Issue Nine
In his ninth issue, Neville challenges Hanks’s testimony that Kaci was
“holding back some details about her sexual abuse” during her forensic interview.
29
Neville contends that Hanks was allowed “to detail her speculative opinion
concerning [Kaci’s] concealing details, being intentionally vague at times, and
avoiding the subject of the actual abuse. Her testimony amounted to nothing more
than pure speculation based upon no objective facts and was inadmissible.” Hanks
testified as follows:
[THE STATE]: And is that sometimes compounded when the
child, a young child, such as [Kaci], is also resisting giving all of the
details of her abuse?
A. Yes.
Q. Okay. Did it appear to you as though [Kaci] was resisting in that
forensic interview or was holding back some details about her sexual
abuse?
[DEFENSE COUNSEL]: Judge, I’m going to object. Counsel’s asking
the witness to speculate.
THE COURT: Do you -- are you able to answer that question based
upon your education and experience in this field?
THE WITNESS: I feel like I am.
THE COURT: Overruled.
A. Repeat it one more time, though, so I can answer it just right.
Q. [THE STATE]: Based on your experience in conducting forensic
interviews and your training, did it appear to you that [Kaci] was
holding back details about her sexual abuse in her forensic interview?
A. I felt, yes, like she was.
Q. Was she intentionally vague at times?
30
A. I felt like she went around the actual subject of the actual abuse,
body parts, went around it and discussed a lot of the details around it.
But then Heather had to come back in again and ask more pointblank
detailed questions.
At trial, Hanks detailed her educational and professional background and how
long she had been conducting forensic interviews with children and working for
Garth House in Beaumont. She testified to her general knowledge and observations
of children interviewed and her opinion on how children react when interviewed.
Neville did not object at trial to Hanks’s qualifications to testify regarding forensic
interviews or her interview with Kaci. Hanks also explained why some children
delay outcry about abuse or have difficulty discussing abuse after an outcry.
Although a witness does not possess personal knowledge of another’s mental
state, the witness may possess personal knowledge of facts from which an opinion
regarding mental state may be drawn. Fairow, 943 S.W.2d at 899. “It is only when
the fact-finder may not fully understand the evidence or be able to determine the fact
in issue without the assistance of someone with specialized knowledge that a witness
must be qualified as an expert.” Osbourn v. State, 92 S.W.3d at 537. To satisfy the
perception requirement of Rule 701, the proponent of the lay opinion testimony must
establish personal knowledge of the facts underlying the opinion. See Tex. R. Evid.
602, 701; Fairow, 943 S.W.2d at 898. Establishing personal knowledge with respect
to lay opinion requires that the witness personally observe or experience “the events
about which he or she is testifying.” Osbourn, 92 S.W.3d at 535. “[O]bservations
31
which do not require significant expertise to interpret and which are not based on a
scientific theory can be admitted as lay opinions if the requirements of Rule 701 are
met.” Osbourn, 92 S.W.3d at 537; Kronenthal v. State, No. 09-19-00138-CR, 2020
Tex. App. LEXIS 7841, at *21 (Tex. App.—Beaumont Sept. 30, 2020, no pet.)
(mem. op., not designated for publication) (citations omitted). When observations
are based on common knowledge this is considered lay witness testimony under Rule
701 and not expert testimony under Rule 702. See Carr v. State, No. 09-22-00266-CR, 2024 Tex. App. LEXIS 3340, at *15 (Tex. App.—Beaumont May 15, 2024, no
pet.) (mem. op., not designated for publication) (citing Tex. R. Evid. 701). Because
Hanks’s conclusion was rationally based on her perception and experience, it was
not improper for her to testify how she interpreted Kaci’s demeanor, so long as
Hanks’s interpretation was helpful to the jury. Osbourn, 92 S.W.3d at 537. “This is
true even when the witness has experience or training. Additionally, even events not
normally encountered by most people in everyday life do not necessarily require the
testimony of an expert. The personal experience and knowledge of a lay witness may
establish that he or she is capable, without qualification as an expert, of expressing
an opinion on a subject outside the realm of common knowledge.” Id.; see also Tex.
R. Evid. 602, 701; Solomon, 49 S.W.3d at 364; Fairow, 943 S.W.2d at 898-99. We
overrule Neville’s ninth issue.
32
Issues Ten through Thirteen: Relevant Evidence
In his final four issues, Neville argues that the trial court erred when it
admitted irrelevant evidence about his marriage, drug use, anger issues, and an
altercation between Neville and Mother. In each issue, Neville argues the following.
Each of the identified portions of evidence were completely irrelevant
to the issues alleged in the indictment to be decided by the jury, and the
trial court should have sustained appellant’s objections and excluded
the evidence. The evidence was used to paint appellant in a further bad
light to prejudice the jury against him and caused him harm. For these
reasons, the error in admitting the evidence over appellant’s objection
was reversible error.
“Evidence is relevant if: (a) it has a tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of consequence
in determining the action.” Tex. R. Evid. 401. Relevant evidence is generally
admissible. Id. 402. A court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of unfair prejudice. Id. 403.
Under Rule 403, it is insufficient that the evidence is prejudicial, since “all
evidence against a defendant is, by its very nature, designed to be prejudicial.”
Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013) (citation omitted);
see also Bluntson v. State, 728 S.W.3d 87, 109-10 (Tex. Crim. App. 2025). Rather,
for 403’s exclusion to apply, the party must be unfairly prejudiced by the evidence,
which means there is a “clear disparity between the degree of prejudice of the offered
evidence and its probative value[.]” Bluntson, 728 S.W.3d at 110 (citations omitted).
33
Unfair prejudice means an undue tendency to suggest a decision on an improper
basis, commonly, an emotional one. Id. (citation omitted); see also Cohn v. State,
849 S.W.2d 817, 820 (Tex. Crim. App. 1993). A trial court’s Rule 403 balancing
analysis generally includes, but is not limited to, four factors: (1) the evidence’s
probative value; (2) the potential of the evidence to impress the jury in an irrational
but nevertheless indelible way; (3) the time required to develop the evidence; and
(4) the proponent’s need for the evidence. State v. Mechler, 153 S.W.3d 435, 440
(Tex. Crim. App. 2005); see also Hernandez v. State, 390 S.W.3d 310, 324 (Tex.
Crim. App. 2012). Rule 403 favors the admission of relevant evidence and carries a
presumption that relevant evidence is more probative than prejudicial. Martinez v.
State, 327 S.W.3d 727, 737 (Tex. Crim. App. 2010) (citation omitted); Jones v. State,
944 S.W.2d 642, 652 (Tex. Crim. App. 1996). Additionally, same transaction
contextual evidence must meet Rule 403’s balancing requirement. See Swarb v.
State, 125 S.W.3d 672, 681 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d). That
said, “the prejudicial nature of contextual evidence rarely renders such evidence
inadmissible, as long as it sets the stage for the jury’s comprehension of the whole
criminal transaction.” Id. (citations omitted).
Issue Ten
In his tenth issue, Neville argues the trial court erred by allowing Mother to
testify about “significant problems in her marriage to appellant, and she related
34
derogatory remarks concerning appellant and extraneous bad acts” such as blaming
appellant for the deterioration of their marriage and doing drugs and being verbally
and physically abusive with her and the children. Neville contends the evidence was
irrelevant and only served to “paint him a criminal[.]”
At trial Mother testified that the marriage between her and Neville began to
deteriorate before Kaci’s outcry. The defense objected as to relevance and the State
countered that the evidence was relevant because “this goes to the family dynamic
and everything that is involved in a case where a father is accused of sexually
abusing his own biological daughter.” The trial court overruled the objection.
Mother stated Neville would do drugs and would be verbally and physically abusive
to her and the family. After continued objections, that were overruled, the defense
requested that the trial court give the jury a limiting instruction regarding the
testimony, which it did. Mother also testified that sometimes to discipline Kaci,
Neville would grab Kaci and body slam her if she acted out. This testimony again
prompted objections from the defense based on relevance, in response to which the
State argued, “Judge, the patient history in State’s Exhibit 6 specifically references
these whippings, and that is what [Kaci] described as a consequence of her not
complying with the defendant’s advances.” The trial court overruled the objection.
On appeal, Neville argues that the trial court erred by admitting the evidence
under Texas Rules of Evidence 401, 402, 403, and 404. At trial, Neville only
35
objected to relevance during this line of questioning. Therefore, he has not preserved
for appellate review any objections under Rule 404. See Tex. R. Evid. 404 (stating
that extraneous bad acts are inadmissible to prove character conformity); see also
Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (“The point of error on
appeal must comport with the objection made at trial.”).
The State argues the testimony was relevant to “paint a full picture of the
physical abuse of the family dynamic and Appellant’s relationship with [Kaci], and
her state of mind.” We agree. Neville contends that the testimony was used solely to
paint him as a criminal and does not have relevance to the abuse alleged. But, as
noted by our sister court, testimony elicited about an appellant’s drinking and the
parent’s marriage is relevant in a sexual abuse case to “paint a full picture of the
family dynamic and to place Appellant’s alleged threat to kill [Mother] and the
children a few days before the separation into context.” Cornett v. State, No. 11-16-00124-CR, 2018 Tex. App. LEXIS 3864, at *6 (Tex. App.—Eastland May 31, 2018,
pet. ref’d) (mem. op., not designated for publication); see also Pena v. State, No. 08-16-00236-CR, 2019 Tex. App. LEXIS 2376, at *47-48 (Tex. App.—El Paso Mar.
27, 2019, pet. ref’d) (mem. op., not designated for publication) (holding testimony
regarding abuse of sibling of a child sexual assault victim was relevant and the trial
court did not abuse its discretion as it went to the child’s credibility, and the
36
“testimonies that [the brother] made an outcry of physical abuse tended to provide
‘a small nudge toward proving or disproving some fact of consequence[.]’”).
Turning to his argument that the evidence was substantially more prejudicial
than probative under Texas Rule of Evidence 403, we disagree. The trial court could
have excluded Mother’s testimony if its probative value were “substantially
outweighed by a danger of . . . unfair prejudice[.]” See Tex. R. Evid. 403. The record
indicates that the trial court balanced the probative value of Mother’s testimony
against its potential for unfair prejudice and found the following:
The Court finds that this does not fit the objection for substantial
prejudice. It does not outweigh by substantial -- . . . the probativeness
and provability [sic] of what we’re here for. And then that is -- and the
background of this family situation is certainly relevant to the assault,
as alleged in the family in the household. We’re going to see how this
works, but I don’t find it irrelevant at this stage, no. Move forward.
The physical abuse of Kaci served to show why there was a delayed outcry.
See Kenley v. State, No. 02-06-127-CR, 2006 Tex. App. LEXIS 8864, at * 10 (Tex.
App.—Fort Worth Oct. 12, 2006, no pet.) (mem. op., not designated for publication)
(holding testimony about the physical abuse testimony of a child sexual assault
victim was relevant because “[t]he physical abuse related directly to [child’s]
reasons for not telling anyone about the sexual abuse for two years, and it allowed
the jury an opportunity to decide whether she was lying, either about the physical
abuse or the charged offenses.”).
37
Additionally, the presentation of Mother’s testimony regarding her marriage
was not long, covered ten minutes of testimony, and the jury was not long
“distracted” from the evidence about Kaci’s assault. Although the challenged
evidence did have the potential to impress the jury with the inference of character
conformity, the trial court addressed any such inference by giving the jury a limiting
instruction during the trial and in the jury charge. This instruction unambiguously
limited the jury’s consideration of the extraneous offense, and the jury is presumed
to have followed the instruction. See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim.
App. 2005). Accordingly, the second factor also favors admissibility. See Perkins v.
State, 664 S.W.3d 209, 217 (Tex. Crim. App. 2022).
Since the trial court’s decision to admit this evidence is within the zone of
reasonable disagreement, we cannot say that the trial court abused its discretion. See
Irsan, 708 S.W.3d at 611; Elsik, 714 S.W.3d at 34. We accordingly overrule
Neville’s tenth issue.
Issues Eleven and Twelve
Similarly, Neville argues that testimony from Neville’s son, Kris, about
Neville’s drug use, anger, physical violence, and touching his groin was irrelevant
and was only used to make Neville appear to be a criminal. Neville failed to preserve
this issue for appellate review. To preserve error involving the admission of
evidence, one must contemporaneously object each time the objectionable evidence
38
is proffered. See Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). To
negate the need for continually objecting, though, one may solicit a running or
continuing objection. See id. Nevertheless, a running objection does not generally
preserve objections to similar evidence or testimony proffered by subsequent
witnesses unless it explicitly references the testimony of other witnesses. See
Stafford v. State, 248 S.W.3d 400, 410 (Tex. App.—Beaumont 2008, pet. ref’d)
(purported error was not preserved because while defendant was granted a running
objection to one witness’s testimony, the record did not indicate that he requested
his running objection to be applied to all witnesses testifying to the matter). Should
the same evidence be admitted without objection elsewhere in the trial, then any
purported error in admitting it is cured. See Valle, 109 S.W.3d at 509.
Mother testified at trial before Kris that she found Neville in the house having
what she believed was a seizure, with a “super erection.” She believed that he was
on drugs, because he had previously demonstrated similar types of behavior while
on drugs. She also had previously observed him touching himself and she moved
Kaci out of the room. Although Neville objected to testimony about the physical
abuse during Mother’s testimony when it was initially offered, he did not obtain a
running objection and, therefore, failed to properly preserve any error. See Tex. R.
App. P. 33.1(a) (requiring a timely objection as a requisite to presenting a complaint
39
for appellate review); Valle, 109 S.W.3d at 509. We overrule Neville’s eleventh and
twelfth issues.
Issue Thirteen
In his final issue Neville argues that the trial court erred by allowing the State
to question Neville about a black eye Mother allegedly told law enforcement was
caused by Neville:
Q. [THE STATE]: Okay. And you said that -- that [Mother], that there
was, like, this routine with her where she would get mad, and the police
were called?
A. Police were called.
Q. And was there ever a situation where it was warranted to call the
police?
A. Like, they were needed?
Q. Yes.
A. No.
Q. Okay. So, what about the situation where she – when police showed
up, she had a black eye. Do you remember that?
A. Yes, that’s the situation I was mentioning earlier.
Q. Okay. I just wanted to make sure I understood which one we were
talking about.
A. Yes, that one in particular.
Q. What specifically happened there?
40
A. Okay. So, an argument started. And a lot of times when arguments start, I try not to sit there and entertain it, especially when it’s nothing. Now, if it’s something, then okay. I’m going to take part of it, but a lot -- a lot of the times that wasn’t the case. So, this time it wasn’t the case. So, argument starts. I go to the backyard to go smoke a cigarette. I’m outside. I’m smoking a cigarette. She’s not done. So, next thing I know, her fist is coming at my face. So, I weave back, missed a lick. I start walking to the front to get away from her. So, we’re standing in the front yard. She still wants to fight.
[DEFENSE COUNSEL]: Your Honor, I’m going to object to
relevance, this incident.
THE COURT: Overruled.
A. So –
Q. [THE STATE]: Go ahead.
A. Okay. So, the argument is still going on, well, mostly with her. At this point I’m laughing ‘cause she’s just nothing to me. I don’t see the threat. It’s a woman. She’s just angry. So, anyway, she leaves. She goes in the house. I wait for a while, about a minute. I let her -- hopefully, she’s cooling off, you know, go in the room, do whatever. So, I decide to go in the house at this point. When I go in the house, all of a sudden the door hits her in the face. She’s behind the door. The door hits her. She yells out, “Oh, my God. Please don’t hit me.” I’m like, “The door just hit you,” like -- and so she made a scene from there.
Q. The door hit her in the face?
A. Literally.
Q. Now, you understand that’s not what she told police when they arrived at the scene.
A. I do understand that.
Q. Okay. And you understand that that black eye that she had, it looked very much like just a round fist, didn’t it?
41
A. No.
Q. Didn’t look like a round fist?
A. No, not to me.
Q. One second. I’m going to show you what’s marked as State’s Exhibit 7 and 8. Let’s look at 8. What’s that?
A. That’s a black eye.
Q. Is that [Mother]?
A. Oh, yes.
Q. Okay. Is that her after the time that we’re talking about?
A. Yes.
Q. Okay. Is that what she looked like after that?
A. Yes, sir.
Q. Okay. And what about State’s 7; is that a close-up of
[Mother’s] eye?
A. Yes, sir.
Q. Great. Okay. Those -- State’s 7 and 8, do those accurately and fairly depict [Mother] after that time we were talking about where the door hit her?
A. Yes, sir.
[THE STATE]: Okay. We’ll offer 7 and 8.
[DEFENSE COUNSEL]: Judge, defense objects to 7 and 8 on the
grounds of relevance.
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THE COURT: Overruled. They’re admitted.
[DEFENSE COUNSEL]: Ask, your Honor, that the Court instruct the
jury on what the exhibits are being considered for.
THE COURT: For any purpose they feel like is directly or indirectly
related to the jury instructions I will give them in making their
deliberations. Also, goes to how they deem the credibility of this
witness.
Prior to this testimony, Neville testified on direct examination the following.
Q. [DEFENSE COUNSEL]: [The State] asked your ex-wife if that had
anything to do with the divorce. Do you think that had anything to do
with the divorce?
A. I believe it did. This isn’t the first time I actually had to go to court
dealing with my wife, her saying that I did something to her, or cops
being called, period, in this relationship. This happened countless of
times. Her getting mad, wanting vengeance, here come the cops.
Almost like a routine. Like, I would know the energy when it
approaches me. I would know exactly what’s about to happen. That’s
how much it happened. It has happened in this relationship -- well, past
relationship. So, yes, I do believe it has a lot to do with it.
“[O]therwise inadmissible evidence may be admitted if the party against whom the
evidence is offered ‘opens the door.’” Schutz v. State, 957 S.W.2d 52, 71 (Tex. Crim.
App. 1997). “Under the opened-door doctrine, a defendant cannot intentionally
broach a subject and then complain when the subject is subsequently pursued by the
State.” Mares v. State, 52 S.W.3d 886, 890 (Tex. App.—San Antonio 2001, pet.
ref’d) (citations omitted). “A party opens the door by leaving a false impression with
the jury that invites the other side to respond.” Hayden v. State, 296 S.W.3d 549,
554 (Tex. Crim. App. 2009). Here, the State presented evidence of Mother having a
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black eye to clear up the false impression that she calls the police on Neville because
she is vengeful. See id. The trial court did not abuse its discretion by allowing this
testimony. See Irsan, 708 S.W.3d at 611; Elsik, 714 S.W.3d at 34. We overrule
Neville’s final issue.
Conclusion
Having overruled all of Neville’s issues on appeal, we affirm the judgment of
the trial court.
AFFIRMED.
KENT CHAMBERS
Justice
Submitted on May 29, 2026
Opinion Delivered October 14, 2026
Do Not Publish
Before Johnson, Wright and Chambers, JJ.
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