COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

Case Number: 02-16-00139-CR

Judge: KERRY P. FITZGERALD

Court: COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

Plaintiff's Attorney: Edward L. Wilkinson
Debra A. Windsor

Defendant's Attorney:

name

Description: In 2012, Walker was dating Abby’s2 mother, Laura, and was living in an
Arlington apartment with Laura, Abby, and three of Laura’s other children. At
15 years old,3 Abby was the oldest of the four children living in the apartment,
and because Laura worked long hours, Abby took on a mothering role to her
siblings so that Laura could catch up on sleep when she was home. Although he
was unemployed at the time, Walker assisted with family expenses through the
disability payments he received from the Veteran’s Administration.
I. The initial investigation
According to Abby, in late November 2012, Walker confronted her when he
found out she was dating someone and he told her that he “needed to check . . .
if something didn’t look right” and that Abby “need[ed] to know how [her] body
look[ed].” Abby testified at trial that Walker directed her to take off her shorts,
which she did, and then he moved her underwear aside, “opened up,” and
“looked around” her vaginal area.
Abby also described a second incident to the jury that took place a few
days later, on December 1. In that incident, Walker returned from taking Laura to
work early in the morning, went into Abby’s bedroom, picked her up from her
bed, and carried her into Laura’s empty bedroom. Abby recalled that Walker 2In accordance with rule 9.8, we refer to children and family members by aliases. Tex. R. App. P. 9.8(b) & cmt.
3By the time of trial, Abby was 18 years old.
3
directed her to take some allergy medicine, so she did, and then she fell back to
sleep. In her testimony, Abby described waking up at some point later to a
sensation of pressure in her “chee-chee”4 area and believed that it was caused
by something penetrating her sexual organ. Then, the room “slowly
disappeared” and Abby drifted back to sleep until a bit later when she woke up to
the feeling of her shorts being pulled up. Although she remembered seeing
Walker walk into the bathroom attached to the room, she testified that she could
not hear anything and that she fell “right back to sleep again.” Finally, at
9:00 a.m., Abby woke up fully. When she went to the bathroom to take a bath
that morning, she noticed black pubic hairs in her underwear.
Later that day, Abby told her friend what she could recall about the
incident, and that evening, her friend’s parents reported the abuse to the police.
Officer Chad Haning of the Arlington Police Department (APD) was one of the
officers that arrived at Abby’s apartment around 1:00 a.m. that night and
encountered what he described as a party of nine to 15 people, mostly males,
who were intoxicated and aggressive about the police presence. Officer Haning
found Abby in her room, where she was sleeping, and Abby told Officer Haning
what had happened the previous morning. Then, at Officer Haning’s direction,
Abby collected the clothes she had been wearing at the time of the assault—a t
shirt, shorts, and underwear—and gave them to Officer Haning; he also collected
4Abby identified the female genitalia as a “chee-chee.”
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the sheets and comforter from Laura’s bed. While he was collecting the bedding,
Officer Haning noticed a bottle of Hydrocodone pills labeled with Laura’s name
on one of the nightstands. Officer Haning then escorted Abby and Laura to Cook
Children’s Medical Center (Cook’s) for a sexual assault examination.
A. Sexual assault examination
Abby and Laura arrived at Cook’s around 4:00 in the morning on
December 2 and each met with Dr. Jayme Coffman, a child abuse pediatrician
and the medical director of the CARE team at Cook’s. Dr. Coffman interviewed
Abby and Laura separately and also performed a physical examination of Abby;
she described both interviews and the examination for the jury at trial.
As part of her interview of Abby, Dr. Coffman learned about Abby’s
medical and sexual history. Abby was a sexually active teenager and reported
last having sex with her boyfriend a week before. Abby also informed
Dr. Coffman that Laura’s former fiancé—who had since passed away—had
sexually abused Abby by trying to make her perform acts of oral sex. Abby also
described her struggle with depression and self-mutilation, and Dr. Coffman
noted the presence of multiple scars on one of Abby’s forearms and both of her
thighs that were the result of her cutting herself when she was angry or sad, a
habit that began in 2008 or 2009. Dr. Coffman testified that, in her experience, it
was not uncommon for children who had been sexually abused to self-mutilate
as a way to cope with their feelings surrounding the trauma, which sometimes
manifested in forms of depression or posttraumatic stress. Indeed, Abby testified
5
at trial that she had suffered from depression since she was young and “[had]
always had mental breakdowns.”
Dr. Coffman testified that Abby told her about both of the above-described
instances of abuse. First, Abby purportedly told Dr. Coffman that Walker had
examined her genital area “for cuts, scars or warts” a few days earlier.
Dr. Coffman continued,
The next thing she told me was that on the morning of December 1st around 6:00 in the morning, he came into her room and then picked her up and took her into her mom and his room. And she said she had put on shorts, then he went to the kitchen and gave her some cold - - or some medicine for her sinuses is the way she worded it. She said she fell asleep, and then she felt something rubbing across her leg. She was in her mom’s bed at that point. And then she kind of halfway woke up. She said she couldn’t really w[a]ke up all the way, just halfway woke up, and he was pulling up her shorts and underwear at that time. And she said it was around 7:30 in the morning when that occurred.

. . . .

Then she states that she woke up again about 9:40 in the morning. She couldn’t wake him up, and then she figured it was too late to go to church anyway. So she took a shower and noticed that her inner thighs and her groin area was moist. And then she noticed some small black hairs down in the genital area. And then around noon, she went to her friend’s house and told her friend about what had happened.

Dr. Coffman concluded that Abby had lost consciousness at some point because
although Abby knew something had happened, “she had no specific memory of
any specific events” because “[s]he couldn’t wake up enough to remember.”
In addition to performing a general, head-to-toe physical examination,
Dr. Coffman examined Abby’s genitals for signs of abuse and collected DNA
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swabs and a urine sample for testing. Dr. Coffman concluded that her findings
from the examination, which included some tears and evidence of healed injuries
to Abby’s genitals, were consistent with suspected sexual abuse.
Dr. Coffman was concerned when Laura seemed to question whether
Abby was telling the truth, and she felt that Laura did not seem protective of
Abby. Dr. Coffman’s concerns were heightened when she learned that Laura
planned to return to the apartment and that Walker was still living there, but
Laura and Abby agreed that Abby would stay with a family friend once they left
Cook’s.
According to Abby, when she and Laura left Cook’s just before 7:00 a.m.,
Laura drove her to a park, where Abby initially told Laura what had happened
between her and Walker. But by the end of the conversation, Abby told Laura
that none of it had actually happened. At trial, she explained that she had felt
Laura did not believe her.
B. Forensic interview
Abby stayed with an aunt for a few days after that, but then she returned to
the Arlington apartment, where Walker was still living. Four days after the
incident, on December 6, 2012, Laura drove Abby to the Alliance for Children,
where Joy Hallum, a forensic interviewer, interviewed her for about an hour.
It was during this interview with Hallum that Abby first publicly recanted her
allegations against Walker by telling Hallum that she had made it all up because
she wanted to get Walker out of their home and did not like his assumption of a
7
fatherly role to her. At trial, Abby testified that she had only recanted out of
concern for her mother and her siblings. Abby testified that she had been afraid
of the possibility that she and her siblings might be split up, or that her
relationships with them might be damaged, and that she did not want to cause
Laura to worry about them.
Hallum, who was skeptical of Abby’s recantation, explained at trial that a
child is more susceptible to recanting allegations of abuse if she lives with her
abuser because “the child is going to be told or [made to feel] that they need to
take that statement back.” Hallum, like Dr. Coffman, had concerns about Abby
returning to an apartment where Walker was living, although she admitted during
cross-examination that she did not know if Walker was living in the same
apartment with Abby at the time of the interview.
C. APD investigation
Detective Garth Savage was assigned to the case and continued to
investigate it despite Abby’s recantation during the forensic interview. He
requested DNA testing of the clothing Abby had been wearing at the time of the
December 1 incident, DNA testing of the swabs taken by Dr. Coffman, and
results of a toxicology test of Abby’s urine. Although the results of the swab
testing came back negative for the presence of semen, sperm was found on the
shorts Abby was wearing on December 1 that matched Walker’s DNA profile.
Additionally, the results of the urine test were positive for Hydrocodone,
indicating that she had taken the drug within the three days before the urine
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sample was taken. According to the toxicologist who testified at trial regarding
the urine test results, Hydrocodone can cause drowsiness and loss of muscle
control.
Detective Savage also interviewed Laura as part of his investigation, and
at trial, he indicated that she did not seem concerned for Abby’s safety and
welfare, nor did she show any concern throughout the investigation. In his view,
Laura took Walker’s side over that of her daughter.
In the months that followed, Abby recanted her allegations two more times.
Abby admitted at trial that, in February 2013, she told a Child Protective Services
(CPS) caseworker, Kimberly Jimerson, that she had made up the allegations and
described them as “absurd.” However, she also testified that she told Jimerson
that she could not recall everything that happened during the December 2012
incident because she had fallen asleep and her mind was “scattered.”
Abby recanted again in June 2013 during an interview with Detective
Savage. According to Detective Savage, Abby told him, “I was not sexually
assaulted by Dontray Walker” and that she had “made the story up.” Despite his
skepticism of Abby’s various recantations, Detective Savage suspended the
investigation.
II. The reopened investigation in 2014
Detective Savage reopened the investigation in November 2014 when he
was contacted by CPS and told that Abby had made another outcry of abuse.
On Halloween of 2014, just before she turned 17, Abby told her best friend that
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Walker had been abusing her since 2012, and that friend reported her outcry to
the police. Abby testified at trial that Walker had continued living with Laura,
Abby, and her siblings in 2012 and 2013, and during that time, she and Walker
had discussed sex, Walker had given her sexual “tasks,” Walker had touched her
breasts multiple times, and after the group moved to another apartment in Grand
Prairie in March 2013, they had engaged in sexual intercourse multiple times
through October 2014.5
Walker was subsequently arrested for sexual assault of a child on
December 29, 2014.
A. Walker’s cell phone and computer
Laura was also arrested and faced separate charges but was released
from jail pending trial. In mid-February 2015, while Walker was still in jail
awaiting trial, Laura’s attorney contacted Detective Savage and informed him that
Laura had found items related to the case on Walker’s cell phone that led her to
believe there may also be related evidence on his computer, both of which
Walker had left in her apartment when he was arrested. Later the same day,
Laura delivered the cell phone and computer to Detective Savage.
After Detective Savage obtained a warrant to search the cell phone and
computer, Detective Mike Weaver performed a forensic analysis of both. 5After this outcry, a second sexual assault examination was performed by a Sexual Assault Nurse Examiner (SANE), and another forensic interview was conducted. No evidence was presented regarding the substance or results of either the examination or the interview.
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Detective Weaver testified that he found text messages between Walker’s cell
phone and a contact labeled with Abby’s name. The messages, which were not
offered into evidence, included adult pornographic materials and references to
“tasks” and to masturbation, according to Detective Weaver. Detective Weaver
also found evidence that an application designed to “hide photographs or videos
or other types of content” had been downloaded and used on the cell phone.
On the computer, Detective Weaver found adult pornography and two
images of Abby. According to Detective Weaver’s analysis, someone had
attempted to delete the two images of Abby from the computer. Those two
images were admitted at trial. The first—State’s Exhibit 5—was a photograph of
Abby taken from a low angle and depicting her standing with her back to the
camera wearing shorts and a tank top. The second photograph—State’s
Exhibit 6—was described by Detective Weaver as depicting Abby “in a full state
of nudity, lying on a bed with her legs spread apart performing essentially what
looks to be an act of self-masturbation.” Because of the way the second
photograph was stored on the computer, Detective Weaver opined that it was the
opening frame of a video that had been previously stored on the computer.
III. The verdict
The jury found Walker guilty of two counts of sexual assault of a child, for
which he was sentenced to 20 and 16 years’ confinement, and one count of
indecency with a child, for which he was sentenced to 14 years’ confinement.
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Discussion
Appellant’s seven points on appeal can be grouped into three categories:
(1) that the trial court erred in admitting the testimony regarding the sexual
assault examination, (2) that the evidence was insufficient to sustain each of the
convictions against him, and (3) that the trial court erred in overruling his motion
to suppress evidence seized from his cell phone and computer.
I. Admission of testimony regarding sexual assault examination
In his first point, Walker argues that the trial court abused its discretion by
allowing Dr. Coffman to testify to Abby’s statements to her during the sexual
assault examination.
A. Standard of review
We review the admission or exclusion of evidence by the trial court for an
abuse of discretion. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App.
2012). A trial court does not abuse its discretion unless its ruling is arbitrary and
unreasonable; the mere fact that a trial court may decide a matter within its
discretionary authority in a different manner than an appellate court would in a
similar circumstance does not demonstrate that an abuse of discretion has
occurred. Foster v. State, 180 S.W.3d 248, 250 (Tex. App.—Fort Worth 2005,
pet. ref’d) (mem. op.).
B. Hearsay and the medical diagnosis exception
Hearsay is an out of court statement that a party offers to prove the truth of
the matter asserted within the statement. Tex. R. Evid. 801(d). Hearsay is
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generally inadmissible unless it falls within one of the enumerated exceptions.
Tex. R. Evid. 802 (providing general rule against hearsay), 803 (providing
exceptions applicable regardless of whether the declarant is available as a
witness), 804 (providing exceptions applicable when the declarant is unavailable
as a witness).
The prohibition against hearsay finds its roots in the belief that inherent
dangers exist in permitting facts to be conveyed through third parties. Laurence
H. Tribe, Triangulating Hearsay, 87 Harv. L. Rev. 957, 958–59 (1974); Steven
Goode, Olin Guy Wellborn III & M. Michael Sharlot, Texas Practice Series: Texas
Rules of Evidence § 801.1 (3d ed. 2002).6 The four primary dangers that have
been identified are ambiguity, insincerity, faulty perception, and erroneous
memory, all of which, it is believed, cannot be overcome through cross
6As explained—
First, a belief may be erroneous because it results from a false impression of objective reality—a defect in perception—a lamentably common product of our imperfect physical and psychological faculties. Second, even a true perception may yield a false belief at a later time because of the tricks of human memory: the unconscious scrambling and regrouping of elements drawn from disparate experiences and from fantasies. Third, even an accurate memory of one person may mislead when used as evidence by another, if it is accidentally communicated imperfectly. However carefully focused, our instruments of communication, both verbal and nonverbal, may be clouded by ambiguity and its counterpart, misinterpretation. Finally, a valid memory may be falsified intentionally.
Goode et al., supra, § 801.1.
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examination of the sponsoring witness but should instead be tested through
cross-examination of the declarant himself. Tribe, supra, 958–59; Goode et al.,
supra, § 801.1.
But because the law also recognizes that certain categories of hearsay
statements are made under circumstances that provide an independent
guarantee of trustworthiness, or carry with them circumstantial indicia of
reliability, exceptions to the hearsay bar have been carved out. Goode et al.,
supra, § 801.1. Rule 803(4) provides an exception for statements that are made
for medical diagnosis or treatment and that describe “medical history[,] past or
present symptoms or sensations[,] their inception[,] or their general cause.” Tex.
R. Evid. 803(4).
The medical diagnosis or treatment exception is “based on the assumption
that the patient understands the importance of being truthful with the medical
personnel involved to receive an accurate diagnosis and treatment.” Bautista v.
State, 189 S.W.3d 365, 368 (Tex. App.—Fort Worth 2006, pet. ref’d). Because
patients are aware that the effectiveness of diagnosis and treatment they receive
depends upon the accuracy of the information received by the medical provider,
those who seek medical attention have a strong motive not to lie. Fleming v.
State, 819 S.W.2d 237, 247 (Tex. App.—Austin 1991, pet. ref’d). Thus, it is
reasoned, those who seek medical treatment will tend to provide truthful and
accurate information. Sneed v. State, 955 S.W.2d 451, 454 (Tex. App.—
Houston [14th Dist.] 1997, pet. ref’d).
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However, with regard to children—especially young children—this tacit
presumption may be invalid because a child may not “appreciate[] the need to be
truthful in her statements to the doctor.” Fleming, 819 S.W.2d at 247; see also
Taylor v. State, 268 S.W.3d 571, 590 (Tex. Crim. App. 2008). When considering
whether statements made by children to medical providers fall within the hearsay
exception, the court of criminal appeals has looked to the analysis of the federal
counterpart to rule 803(4) in United States v. Iron Shell, which identified a two
part test considering the child’s motive and whether it is reasonable for the
physician to rely on the information given by the child. Taylor, 268 S.W.3d at 590
(discussing United States v. Iron Shell, 633 F.2d 77, 83–84 (8th Cir. 1980)
(applying Fed. R. Evid. 803(4)), cert. denied, 450 U.S. 1001 (1981)).
While the proponent of a statement offered under the medical diagnosis
exception must show that the declarant was aware that the statement was made
for medical purposes, id. at 588–89, she need not do so with magic words such
as “diagnosis” or “treatment.” Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.—
Fort Worth 1999, pet. ref’d). This court has previously held, under circumstances
similar to those at issue here, that the testimony of a doctor or a SANE to certain
statements made during a sexual assault examination were generally admissible
under the medical diagnosis exception to the hearsay rule. See Estes v. State,
487 S.W.3d 737, 756 (Tex. App.—Fort Worth 2016, pet. granted on other
issues); Beheler, 3 S.W.3d at 189.
15
Abby was 15 years old at the time she made these statements to
Dr. Coffman. We need not decide whether Abby should be treated as a child,
potentially subjecting her statements to the standards discussed in Taylor, or as
an adult who would be expected to provide truthful statements to a medical
provider. Either way, the State’s proof satisfied the standards.
C. Application of the medical diagnosis exception
After the prosecutor asked Dr. Coffman, “[W]hat was the first thing that
[Abby] told you about what was going on with why she’s there?” Walker’s counsel
objected on the basis of hearsay and the denial of cross-examination.7 After the
trial court overruled the objection, Walker’s counsel requested a “continuing
objection,” which was granted. Thereafter Walker’s counsel did not lodge any
other objection, nor did he specifically object to any particular statement as falling
outside of the medical diagnosis hearsay exception. See Tex. R. App. P.
33.1(a)(1)(A) (requiring that a party make a timely objection “with sufficient
specificity to make the trial court aware of the complaint” in order to preserve
complaint for appellate review); Sattiewhite v. State, 786 S.W.2d 271, 283 n.4
(Tex. Crim. App. 1989) (warning that an advocate who lodges a running objection
should take pains to make sure the objection complies with the specificity
7The objection was phrased, “May we object at this time it’s hearsay and denial of cross - - confrontation and cross-examination.” Walker has not pursued his right-to-confrontation argument on appeal.
16
requirements of rule 33.1(a)(1)(A)’s predecessor), cert. denied, 498 U.S. 881
(1990).
On appeal, again Walker does not point to any particular statement that he
contends falls outside the hearsay exception.8 Instead, he generally complains
about all statements made by Abby during the medical examination. He argues,
globally, that there was “no evidence” that the statements were sought for
medical purposes or that Abby was aware of any such purpose. Thus, we will
consider the admissibility of Dr. Coffman’s testimony regarding Abby’s
statements during the examination as a whole, and we will not focus on any
single, specific statement attributable to Abby by Dr. Coffman.
Abby’s statements were made in conjunction with an examination
conducted in a hospital by medical professionals shortly after Abby had reported
a possible sexual assault. Dr. Coffman testified generally to the purpose of
sexual assault examinations, explaining the need to obtain accurate personal
and medical history and to conduct a physical examination in order to determine
whether the child needs treatment, either in the form of medication (such as
treatment for sexually transmitted diseases or pregnancy prophylaxis) or a
referral to counseling for mental health needs. Dr. Coffman also testified that she
discussed Abby’s history with her and the need for an evaluation during the
8In his brief, Walker does recite as objectionable the excerpt of Dr. Coffman’s narrative testimony set forth above—Abby’s description of the two incidents that had occurred in the days before the sexual assault examination. But the thrust of his hearsay complaint has broader application.
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examination. Abby’s testimony demonstrated that she understood the need for
the taking of her personal and medical history. She testified that she told the
nurses and Dr. Coffman what happened because “[t]hey [needed] to know
something around about what happened.” See Beheler, 3 S.W.3d at 188–89
(explaining that the particular words “diagnosis” or “treatment” are not necessary,
but that courts “must look to the record to see if it supports a conclusion that the
young child understood why she needed to be honest”).
The record here supports the conclusions that Dr. Coffman needed truthful
and accurate information to diagnose and treat Abby and that Abby was aware
that she needed to give full and accurate information to Dr. Coffman. Thus,
Dr. Coffman’s testimony generally fell within the parameters of statements made
for medical diagnosis or treatment under rule 803(4). See Estes, 487 S.W.3d at
756 (holding requirements of 803(4) were met by nurse examiner’s testimony to
the purpose of the examination as being to “treat” and “diagnose” the
complainant); Beheler, 3 S.W.3d at 189 (holding requirements of 803(4) were
met by SANE’s testimony regarding the course of her examinations, her
explanation to the complainant of the purpose of the exam, and her testimony to
the child’s demeanor during the exam). As Walker does not point us to any
specific testimony that he contends falls outside the medical diagnosis and
treatment exception, our analysis ends here.
For these reasons, we overrule Walker’s first point.
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II. Sufficiency of the evidence
In his second, third, and fourth points, Walker argues that the evidence
was insufficient to support each of the three convictions. Walker specifically
argues that Abby’s testimony was ambiguous and lacked “any credibility,” and
that, without Dr. Coffman’s “improperly admitted hearsay testimony,” there was
insufficient evidence to support the convictions.
A. Standard of review
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Jenkins v. State, 493 S.W.3d 583, 599
(Tex. Crim. App. 2016). This standard gives full play to the responsibility of the
trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Jenkins, 493 S.W.3d at 599.
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Blea v. State,
483 S.W.3d 29, 33 (Tex. Crim. App. 2016). Thus, when performing an
evidentiary sufficiency review, we may not re-evaluate the weight and credibility
of the evidence and substitute our judgment for that of the factfinder. See
Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we
19
determine whether the necessary inferences are reasonable based upon the
cumulative force of the evidence when viewed in the light most favorable to the
verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied,
136 S. Ct. 198 (2015). We must presume that the factfinder resolved any
conflicting inferences in favor of the verdict and defer to that resolution. Id. at
448–49; see Blea, 483 S.W.3d at 33.
To determine whether the State has met its burden under Jackson to prove
a defendant’s guilt beyond a reasonable doubt, we compare the elements of the
crime as defined by the hypothetically correct jury charge to the evidence
adduced at trial. See Jenkins, 493 S.W.3d at 599; Crabtree v. State, 389 S.W.3d
820, 824 (Tex. Crim. App. 2012) (“The essential elements of the crime are
determined by state law.”). Such a charge is one that accurately sets out the
law, is authorized by the indictment, does not unnecessarily increase the State’s
burden of proof or restrict the State’s theories of liability, and adequately
describes the particular offense for which the defendant was tried. Jenkins, 493
S.W.3d at 599. The law as authorized by the indictment means the statutory
elements of the charged offense as modified by the factual details and legal
theories contained in the charging instrument. See id.; see also Rabb v. State,
434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (“When the State pleads a specific
element of a penal offense that has statutory alternatives for that element, the
sufficiency of the evidence will be measured by the element that was actually
pleaded, and not any alternative statutory elements.”).
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B. Sexual assault of a child
To prove sexual assault of a child, the State had to show that Walker
intentionally or knowingly caused the penetration of Abby’s sexual organ by any
means or caused Abby’s sexual organ to contact or penetrate the sexual organ
of another person, including himself. Tex. Penal Code Ann. § 22.011(a)(2)(A),
(C). Walker was charged and convicted of two counts of sexual assault—first,
that he penetrated Abby’s sexual organ with his own; and second, that he
inserted his finger into Abby’s sexual organ. Walker argues in his brief that the
State failed to prove “each and every” element of sexual assault because
(1) Abby’s testimony was “ambiguous, at best, and lacked any credibility,” and
(2) Dr. Coffman’s testimony should not be considered because it was improperly
admitted.
First, we have held that Dr. Coffman’s testimony was not improperly
admitted. Nevertheless, even if it had been, we must consider all evidence—
including improperly admitted evidence—in conducting a sufficiency review.
Jenkins, 493 S.W.3d at 599.
Abby testified to two specific instances of sexual assault—the November
2012 incident during which Walker “check[ed]” her vaginal area after finding out
that she had a boyfriend and the December 2012 incident, when he gave her
“allergy medicine,” and she passed out to later awaken to a sensation of
pressure in her vagina and Walker pulling up her pants. The jury also heard
consistent testimony from Dr. Coffman as to Abby’s description of the assaults to
21
her. Additionally, the jury had the benefit of evidence that sperm matching
Walker’s DNA profile was detected on Abby’s shorts, that a bottle of
Hydrocodone—a powerful drug that can render a person drowsy and without
muscle control—was present on the table beside the bed where Abby claimed
the sexual assault had occurred, and that Abby’s urine test revealed the
presence of Hydrocodone in her system during the time period that Abby claimed
the assault occurred.
Although Abby admittedly recanted her allegations multiple times, it was
within the jury’s purview to weigh those recantations in their consideration of her
overall credibility. Such a conflict in the evidence, without more, is not enough to
render the evidence insufficient. See Upton v. State, 853 S.W.2d 548, 552 (Tex.
Crim. App. 1993) (explaining that conflicts in the evidence are for the jury to
resolve); Saldaña v. State, 287 S.W.3d 43, 60 (Tex. App.—Corpus Christi 2008,
pet. ref’d) (“[W]hen a witness recants prior testimony, it is up to the fact finder to
determine whether to believe the original statement or the recantation. A fact
finder is fully entitled to disbelieve a witness’s recantation.”) (citing Chambers v.
State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991)); Jackson v. State, 110
S.W.3d 626, 631 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (noting that a
conviction “may rest on hearsay despite the lack of the complainant’s testimony
or even the complainant’s recantation”).
22
On the record before us, the evidence was sufficient to support both
convictions for sexual assault. We therefore overrule Walker’s second and third
points.
C. Indecency with a child
To prove indecency with a child, the State was required to show that, when
Abby was younger than 17 years of age, Walker engaged in sexual contact with
her or caused her to engage in sexual contact. Tex. Penal Code Ann.
§ 21.11(a)(1). “Sexual contact” includes the touching of the breast of a child,
including through clothing, with the intent to arouse or gratify the sexual desire of
any person. Id. § 21.11(c)(1). Walker was charged and convicted of committing
indecency with a child by touching Abby’s breast.
Walker argues that Abby’s testimony that Walker touched her breast was
ambiguous at best and lacked credibility. Specifically, Walker takes issue with
the prosecutor’s manner of questioning Abby about the touching and asserts that
only the prosecutor actually testified to the touching.9
The following exchange addressed Walker’s touching of Abby’s breast:
[STATE:] When we talked about the things that would happen over the last 2012, 2014, back in November of 2012 when - - when that happened and what he did to you, do you remember if he touched any other part of your body? Do you remember if he touched your breasts up here? 9Walker also takes issue with the admission of Dr. Coffman’s testimony, but, as we have already explained above, even if her testimony was inadmissible, we would still consider it in our sufficiency analysis. Jenkins, 493 S.W.3d at 599.
23
[ABBY:] (No audible response.)
[STATE:] Is that a “yes”?
[ABBY:] (No audible response.)
[STATE:] Okay. You got to say it out loud, [Abby].
[ABBY:] Yes.
[STATE:] Did he do that more than once after November of 2012?
[ABBY:] Yes.
[STATE:] All right. Would he do that every time he would have sex with you, or do you remember?
[DEFENSE COUNSEL:] Leading, Your Honor.
[THE COURT:] Sustained.
[STATE:] Do you know when he would do that? Would he do that then, or would he do it other times?
[ABBY:] It would be other times. I mean, when a certain thing like that is done, I have yet, you know, to like remember the actual point in time it was done.
[STATE:] Okay.
[ABBY:] Because things like that is something that’s done more than once, more than twice, so - -
[STATE:] Hard to remember specifics - -
[ABBY:] Yes.
[STATE:] - - of how it happened after?
[ABBY:] Yes.
Although Walker complains in his brief that the prosecutor’s questions
were leading in nature, his only objection to leading during that exchange was
24
sustained. See Tex. R. App. P. 33.1(a)(1)(A); Little v. State, 376 S.W.3d 217,
220 (Tex. App.—Fort Worth 2012, pet. ref’d) (noting that, in order to preserve
error for appellate review, a party must make a timely and specific objection and
receive an adverse ruling from the trial court).
And although Walker characterizes Abby’s testimony as “ambiguous,” we
disagree. See Merriam-Webster Online Dictionary, http://www.merriam
webster.com/dictionary/ambiguous (last visited Nov. 8, 2017) (defining
“ambiguous” as “capable of being understood in two or more possible senses or
ways”). Her “yes” answer to the prosecutor’s question, “Do you remember if he
touched your breasts up here?” combined with her “yes” answer to the follow-up
question, “Did he do that more than once after November of 2012?” is not
susceptible to multiple interpretations. Instead, her testimony unmistakably
conveyed the message that Walker had touched her breasts multiple times after
November 2012.
The State was also required to prove that Walker touched Abby’s breasts
with the intent to arouse or gratify his own sexual desire or that of someone else.
Tex. Penal Code Ann. § 21.11(c)(1). His intent to arouse or gratify himself
through such touching can be reasonably inferred from the evidence of the two
sexual assaults, Abby’s testimony that they engaged in sexual intercourse
regularly after they moved to the Grand Prairie apartment, and his possession of
a pornographic photograph of Abby on his computer. See Ranson v. State, 707
S.W.2d 96, 97 (Tex. Crim. App.) (holding that the intent to arouse or gratify a
25
sexual desire can be inferred from the perpetrator’s conduct, remarks, and all the
surrounding circumstances, including a common pattern of similar acts), cert.
denied, 479 U.S. 840 (1986); Bazanes v. State, 310 S.W.3d 32, 40 (Tex. App.—
Fort Worth 2010, pet. ref’d) (“An oral expression of intent is not required; the
conduct itself is sufficient to infer intent.”); DeLeon v. State, 77 S.W.3d 300, 312
(Tex. App.—Austin 2001, pet. ref’d) (noting, in prosecution of indecency by
touching a child’s breast, requisite intent could be inferred by the jury from
evidence of other, similar instances in which appellant touched the child’s
breast). Based on the record before us, we hold that the evidence was sufficient
to support the conviction for indecency with a child. We therefore overrule
Walker’s fourth point.
III. Motion to suppress
In his final three points, Walker argues that the trial court erred by
overruling his motion to suppress the evidence seized from his cell phone and
computer. Appellant asserts in particular that the seizures violated the fourth
amendment of the U.S. Constitution and his right to due process (point 5), his
right to due course of law (point 6), and article 38.23 of the code of criminal
procedure (point 7). See U.S. Const. amend. IV, XIV; Tex. Const. art. 1, § 9;
Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005).
A. Standard of review and applicable law
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
26
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
In reviewing the trial court’s decision, we do not engage in our own factual
review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.
State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial
judge is the sole trier of fact and judge of the credibility of the witnesses and the
weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.
Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),
modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.
2006). Therefore, we give almost total deference to the trial court’s rulings on
(1) questions of historical fact, even if the trial court’s determination of those facts
was not based on an evaluation of credibility and demeanor, and (2) application
of-law-to-fact questions that turn on an evaluation of credibility and demeanor.
Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.
Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.
2002). But when application-of-law-to-fact questions do not turn on the credibility
and demeanor of the witnesses, we review the trial court’s rulings on those
questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d
604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.
Stated another way, when reviewing the trial court’s ruling on a motion to
suppress, we must view the evidence in the light most favorable to the trial
court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818
(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we
27
determine whether the evidence, when viewed in the light most favorable to the
trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.
We then review the trial court’s legal ruling de novo unless its explicit fact
findings that are supported by the record are also dispositive of the legal ruling.
Id. at 818.
When the record is silent on the reasons for the trial court’s ruling, or when
there are no explicit fact findings and neither party timely requested findings and
conclusions from the trial court, we imply the necessary fact findings that would
support the trial court’s ruling if the evidence, viewed in the light most favorable
to the trial court’s ruling, supports those findings. State v. Garcia-Cantu, 253
S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede, 214 S.W.3d at 25. We then
review the trial court’s legal ruling de novo unless the implied fact findings
supported by the record are also dispositive of the legal ruling. Kelly, 204
S.W.3d at 819.
We must uphold the trial court’s ruling if it is supported by the record and
correct under any theory of law applicable to the case even if the trial court gave
the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex.
Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App.
2003), cert. denied, 541 U.S. 974 (2004).
The Fourth Amendment protects against unreasonable searches and
seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at
24. To suppress evidence because of an alleged Fourth Amendment violation,
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the defendant bears the initial burden of producing evidence that rebuts the
presumption of proper police conduct. Amador, 221 S.W.3d at 672; see Young
v. State, 283 S.W.3d 854, 872 (Tex. Crim. App.), cert. denied, 558 U.S. 1093
(2009). A defendant satisfies this burden by establishing that a search or seizure
occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant
has made this showing, the burden of proof shifts to the State, which is then
required to establish that the search or seizure was conducted pursuant to a
warrant or was reasonable. Id. at 672–73; Torres v. State, 182 S.W.3d 899, 902
(Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App.
2005).
B. Facts adduced at the motion to suppress hearing
During the trial, the suppression hearing was held outside the presence of
the jury. Detective Savage, the sole witness to testify, testified as follows.
Laura’s attorney contacted Detective Savage in mid-February 2015 and
informed him that Laura had found something related to the case on Walker’s cell
phone. Laura subsequently delivered Walker’s cell phone and computer to
Detective Savage and told Detective Savage that both had been left in her
apartment when Walker was arrested. Laura also told Detective Savage that she
had accessed Walker’s Google account on his cell phone, where she found a
drop box containing text messages. Laura attempted to forward some of the
messages to herself and take screenshots of the messages to save them.
Detective Savage did not ask Laura if she had obtained Walker’s permission to
29
look at the contents of his cell phone or computer. While Laura was in Detective
Savage’s presence, she accessed the contents of the cell phone to look up the
name of the folder where the messages were stored.
When Detective Savage asked Laura about the texts that she had seen on
the cell phone, Laura also revealed to Detective Savage that she had discovered
a fake Instagram account on the cell phone. Detective Savage was under the
impression that Laura had access to the computer because “[i]t[ was] a family
computer that[ was] in the house.”
Once he took custody of the cell phone and computer, Detective Savage
accessed the cell phone and put it in “airplane mode” to prevent any “destruction
of evidence from any outside source.” Detective Savage then obtained search
warrants allowing APD to search the contents of both. Detective Savage testified
that neither he nor anyone else from APD to his knowledge looked at any of the
content on the cell phone until after he had secured the search warrant.
The trial court denied the motion to suppress and made findings on the
record that there was “no evidence before the Court that the cell phone and the
computer were seized illegally by [Laura]. The only testimony before the Court is
that those items were in her possession and that she turned them over to the
police and that she had the passwords to those items.”
C. Application
Walker does not dispute that Detective Savage obtained a warrant to
search the contents of the cell phone and the computer. Rather, Walker’s
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argument focuses on Laura’s access of the cell phone and computer and her
delivery of same to Detective Savage.
Walker argues in summary fashion that, because Laura did not have his
permission to deliver the computer and cell phone to law enforcement, any
evidence found on them—especially the two photographs of Abby—should have
been suppressed in accordance with article 38.23. See Tex. Code Crim. Proc.
Ann. art. 38.23(a). However, it was Walker’s burden to first establish standing to
challenge the admission of the evidence by showing he had a “legitimate
expectation of privacy” in the computer and cell phone. See Rakas v. Illinois,
439 U.S. 128, 148, 99 S. Ct. 421, 433 (1978); Villarreal v. State, 935 S.W.2d 134,
138 (Tex. Crim. App. 1996). “To carry this burden, the accused must normally
prove: (a) that by his conduct, he exhibited an actual subjective expectation of
privacy, i.e., a genuine intention to preserve something as private; and (b) that
circumstances existed under which society was prepared to recognize his
subjective expectation as objectively reasonable.” Villarreal, 935 S.W.2d at 138.
We examine the circumstances in their totality, but various factors that
have been considered in determining whether an individual established an actual
subjective expectation of privacy include (1) whether the accused had a property
or possessory interest in the place invaded; (2) whether he was legitimately in
the place invaded; (3) whether he had complete dominion or control and the right
to exclude others; (4) whether, before the intrusion, he took normal precautions
customarily taken by those seeking privacy; (5) whether he put the place to some
31
private use; and (6) whether his claim of privacy is consistent with historical
notions of privacy. Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App.
2002) (citing Villareal, 935 S.W.2d at 138), cert. denied, 538 U.S. 927 (2003).
While these factors are more applicable to a discussion of an expectation of
privacy in a place rather than in an object such as a computer hard drive or cell
phone, they remain instructive here. See Miller v. State, 335 S.W.3d 847, 855
(Tex. App—Austin 2011, no pet.).
Walker did not establish that he had a subjective expectation of privacy in
the computer. Although Walker asserts in his brief that the computer belonged to
him, Detective Savage determined, based on his conversation with Laura, that
the computer was considered a “family computer” in their apartment. Even if his
assumption was flawed, the evidence showed that Walker did not exercise
complete dominion or control over the computer—Laura had access to the
computer and knew the password needed to access its contents. There was no
evidence that Walker attempted to limit anyone’s access to the computer or that
he forbade Laura, Abby, or the other three children in the apartment from
accessing it.
Likewise, Laura knew the password to Walker’s cell phone and it was left
in her possession. There was no evidence of Walker’s subjective expectation of
privacy in the cell phone.
Based on the record before us, and considering the totality of the
circumstances, we cannot conclude that the district court abused its discretion in
32
determining that Walker did not establish a reasonable expectation of privacy in
the computer or cell phone. See id. (holding officer did not have subjective
expectation of privacy in thumb drive that he left unattended in common area of
law enforcement office, without any external identifying information, and did not
protect with a password, encryption, or by storing in a locked case); see also
United States v. Barth, 26 F.Supp.2d 929, 936 (W.D. Tex. 1998) (explaining
individual’s reasonable expectation of privacy can be destroyed if his conduct or
activity or the circumstances of the situation significantly lessen his reasonable
expectation of privacy by creating a reasonably foreseeable risk of intrusion by
private parties).
Because Walker has failed to establish that he had a legitimate
expectation of privacy in the cell phone and computer, he has no standing to
challenge the seizure of that evidence. We therefore overrule Walker’s final
three points.

Outcome: Having overruled each of Walker’s seven points, we affirm the trial court’s
judgment.

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