Marcos Landin v. The State of Texas

Austin, TX - Criminal defense attorney represented Marcos Landin with a Indecency with a Child charge.

Child was born to Mother and Father in 2001. Mother separated from Father,

began dating Landin, and asked Landin to move into an apartment with her and Child in 2004.

The three moved into a duplex about a year later and then to a trailer home about a year after

that. The relationship between Mother and Landin ended in 2008, but they reunited and began

living together again briefly in 2010. Later that year, Mother married Husband. Shortly

afterward, Mother and Child began counseling at SafePlace because of “incidents” with

Husband. While receiving services at SafePlace, Child made no outcry of abuse involving

Landin.

In 2016, when Child was fourteen, Mother discovered that Child had been

“stay[ing] up all night texting,” and Mother looked through Child’s phone “to see who [Child]

was texting with.” Mother found some messages about Child “trying to hurt [her]self” and asked

about them. Child initially said that she was unhappy and being bullied at school, but Mother

said that was not a good reason for Child to harm herself and asked again. Child testified, “At

first I kept telling her I just wasn’t really happy. But then she started crying, and I got a little, I

guess, sad. And I don’t know the word, but at the end I just told her the reason why, so that

made her upset.” Child made an outcry of sexual assault to Mother, stating that Landin “had

touched [her] in a certain way that wasn’t right.” Child later specified that Landin had

penetrated her vagina with his finger. Mother took Child to meet with the police, and an officer

interviewed Child in a patrol car. Within the next couple of weeks, Child also recalled and

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We provide only a brief summary of the evidence at trial because there is no

sufficiency issue presented on appeal. See Tex. R. App. P. 47 (requiring appellate court to issue

opinion that is brief as practicable but addresses all issues raised and necessary for resolution of

appeal); see also Tex. Code Crim. Proc. art. 38.07 (providing that child victim’s testimony alone

is sufficient to support sexual-abuse conviction).

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disclosed that Landin attempted to have her perform oral sex on him. Landin was subsequently

charged with the offenses involved in this appeal.

Several witnesses testified at the trial in 2019, including medical and counseling

providers, Mother, Landin, and seventeen-year-old Child. Child testified that Landin sexually

assaulted her when she was in first grade, during the time that they lived in the trailer home. She

also had flashbacks of him attempting to have her perform oral sex when she was in “pre-K,”

during the time that they lived in the apartment. Child stated that she remembered the earlier

incident after she remembered the second incident that happened at the trailer home. She

testified,

I had like flashbacks that I was kind of wondering what that was. From then until

I got to fifth grade. . . . I just started remembering more things. I was just having

a lot of flashbacks, which, in that moment, I was realizing what had happened,

because mostly my mom had a talk with me in fifth grade . . . [about] just growing

up and how I shouldn’t let a guy touch me at all.

Child stated that she was “a hundred percent” certain that Landin was the person who committed

these offenses.

In 2011—after Child was abused but before she made her outcry—Mother and

Child received counseling at SafePlace. During a hearing outside the presence of the jury, the

district court excluded the SafePlace counseling records. Additionally, the district court

excluded proffered testimony from Anna Valverde, a clinical social worker at SafePlace, as to

counseling sessions she provided to Child in 2017, which focused on the impact of the sexual

abuse that Child suffered rather than the details of it. However, the district court noted that some

of Valverde’s testimony was admissible because it contradicted Mother’s prior testimony

denying that Child had witnessed Husband’s abuse of Mother. Previously admitted records from

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Carousel Pediatrics noted that Child had received counseling because Mother sustained domestic

abuse. Given the prior evidence, the district court ruled that Landin could ask Valverde whether

Mother had indicated that she was married to the man who perpetrated physical abuse against her

and that Child had witnessed that abuse.

Before the jury, Valverde testified that she conducted Mother’s intake and referral

for counseling in January of 2011. Valverde stated that Child was also involved in that

counseling “basically throughout the year of 2011.” Valverde used the SafePlace records to

refresh her memory and testified that Mother sought counseling because of her “husband’s”

escalation of violence from September to December of 2010 and that Mother reported that Child

witnessed the violence. Further, Valverde testified that the “husband” Mother was complaining

about in counseling was not Landin.

In the spring of 2016, Child saw Dr. Kelly Liker of Dell Children’s Medical

Center at a clinic located in the Center for Child Protection. Child told Dr. Liker that she felt sad

remembering things that had happened when she was little involving her mother’s ex-boyfriend,

“Marcos [Landin].” Medical records from Dell Children’s Medical Center were admitted into

evidence.

The parties disputed the admissibility of medical records concerning Child’s

mental-health treatment at Shoal Creek in the summer of 2016. Those records were initially

excluded, but the district court later admitted a redacted version into evidence. The admitted

Shoal Creek records included Child’s history of experiencing bullying; her reports of feeling

depressed, having suicidal ideation, and believing that “people hate me” and “don’t like me how

I am now”; her increased desire for “superficial cutting” and “digging nails into skin”; and her

starting on Prozac “to address her mood and anxiety symptoms” and Zyprexa for “agitation.” In

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the admitted records, Child also stated her belief that she is “bipolar because of her mood

swings” and her concern about Mother saying that “she was thinking of sending [Child] to

Mexico because she thinks it would be better for [Child].” Those records also listed the names

of other men living in the home with Child, including Stepfather (not Mother’s Husband) and

Uncle.

The redacted Shoal Creek records removed references to an incident that occurred

after Child made her outcry and to Child’s sexual behavior that the parties agreed to redact under

the “rape-shield law,” see Tex. R. Evid. 412, and that the district court deemed irrelevant. The

incident involved a man that Child met and messaged through Facebook who solicited Child to

perform sexual acts. On voir dire outside the presence of the jury, Mother testified that she

called police about the Facebook incident and that Child received mental-health treatment at

Shoal Creek because Child wanted to kill herself. Child also testified outside the presence of the

jury about her mental health, and when asked if she recalled reporting her feelings of anger or

concern that she was bipolar, Child stated that “all [her] anger would go to depression” or

sadness. Landin pointed out that during Child’s hospitalization at Shoal Creek, she reported that

she thought an “hombre” was hiding in a closet and that the man referenced was not Landin.

While at Shoal Creek, Child also reported that she had been hearing voices since she was ten.

Before the jury, Child testified that she sometimes heard voices telling her to hurt

herself and that she started cutting her arm in fifth grade. Child reported to Dr. Liker that she

stopped cutting herself in 2015. Child recalled that she spent a lot of time with a babysitter when

she was little, that Landin worked during the day, and that Mother previously worked a lot.

Child missed Mother and wished that Mother had instead spent more time with her. Child stated

that Mother now tries not to work “so she can focus on me and spend more time with me.”

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The State’s expert psychologist Dr. William Carter, who did not examine Child,

testified generally about sexual-abuse allegations made by children and causes of children’s

mental-health problems. He stated that delayed outcries are common; that it is typical for

children to forget some details around the specific traumatic event that occurred; that a child’s

reports of “hearing voices in their head” are often experiences of uncontrolled anxiety rather than

psychosis; and that if something happened to a young child similar to another trauma that

happened a few years later, the later event might help the child recall and remember what had

happened before. He acknowledged that a person could be suicidal without having been a

sexual-abuse victim, but he noted that sexual-abuse victims “are overrepresented in psychiatric

hospitals [and] in prisons.”

Dr. Carter also testified about reasons for a child’s false allegations of sexual

abuse. He stated that some reasons included “attention seeking”; “false memory” resulting from

the changing of a memory over time as subsequent experiences are added or blending things that

are real with those that are not; and a desire to please parents. He stated that a child could want

to please a parent if the child reported to the parent that something happened, but the parent

disbelieved the child’s explanation and pressed the child to “tell the truth.” He testified that

bullying can affect a child’s mental state, causing loneliness, depression, anxiety, and potentially,

suicidal ideation. He also agreed that someone who is bullied may exhibit behavior such as

cutting, but he opined that there are usually other reasons for that. Additionally, Dr. Carter

testified that children who have traumatic household experiences, such as domestic violence, can

experience the same symptoms as children who suffer from sexual abuse. He noted that

“domestic violence in and of itself does not cause false memories,” although “the more troubled

a child’s background, the more she has to sort through in telling us her life story.”

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Landin, who later married and had a daughter of his own, testified that he did not

know why Child made her accusations, and he denied them. He also testified that he told police

about his willingness to take a polygraph examination but it was not arranged. He acknowledged

that before this case, he had a DWI charge in 2009 but said he was never accused of any other

crime. Several witnesses testified that Landin is trustworthy and a person of good moral and

ethical character around children. Landin’s employer, who had known Landin for almost two

decades and had him on his work crew since Landin was sixteen, testified that Landin had a

“great reputation,” that he knew of no one who would say otherwise, and that if he had a son, he

would want him to be just like Landin.

After both sides rested and closed, less than an hour into the jury’s deliberation,

the district court received the jury’s requests for Child’s initial interview with police on the date

of her outcry, Child’s interview at the Center for Child Protection, and “to review all evidence

that was submitted.”

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The district court responded, instructing the jurors that they could consider

only the evidence admitted during trial and provided them with all the admitted exhibits. The

jury ultimately convicted Landin, and the district court assessed punishment. Landin filed a

motion for new trial that was denied by operation of law. This appeal followed.

DISCUSSION

Right to Present Complete Defense

Landin contends that the district court’s rulings limiting the content and scope of

some witnesses’ testimony and excluding certain records from evidence hindered his ability to

present a complete defense and denied his rights to due process and a fair trial. Specifically, in

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During their testimony, a police officer and a forensic interviewer referenced videos of

their interviews with Child but those videos were not admitted into evidence.

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four sub-issues, Landin contends that the district court abused its discretion by: (1) not

permitting defense counsel to “thoroughly” cross examine Child about her mental-health history

and mental state to determine the reliability and credibility of her memory; (2) not permitting

defense counsel to “thorough[ly]” and “complete[ly]” cross examine Mother about certain

experiences Child had that could have contributed to a false memory; (3) not allowing SafePlace

counselor Valverde to provide “full testimony” about her sessions with Child and the effects on

Child of the “family violence” referenced in the SafePlace records; and (4) excluding records

from Child Protective Services and “medical records” showing Child’s mental-health history and

her state of mind.

Standard of Review

We review a trial court’s decision to limit or exclude topics from crossexamination under an abuse of discretion standard. Johnson v. State, 490 S.W.3d 895, 917 (Tex.

Crim. App. 2016); see Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009) (noting

that “trial judge has wide discretion in limiting the scope and extent of cross-examination”).

Similarly, we review a trial court’s decision on the admissibility of evidence under an abuse of

discretion standard. Johnson, 490 S.W.3d at 908. We uphold the trial court’s ruling if it was

correct on any applicable theory of law. Id. We reverse that ruling only if it “falls outside the

zone of reasonable disagreement.” Id.

The Confrontation Clause of the Sixth Amendment to the United States

Constitution provides, in relevant part, that “[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI; see

id. amend. XIV. The Confrontation Clause secures an opposing party’s opportunity to conduct

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cross-examination, “the principal means by which the believability of a witness and the truth of

his testimony are tested.” Davis v. Alaska, 415 U.S. 308, 315-16 (1974); accord Johnson, 490

S.W.3d at 909. Thus, the Sixth Amendment right to cross-examination allows for an attack on

the general credibility of a witness or “to show their possible bias, self-interest, or motives in

testifying.” Johnson, 490 S.W.3d at 909 (quoting Hammer, 296 S.W.3d at 561). “A trial judge

can abuse his or her discretion by excluding admissible evidence that is offered by the defendant

to demonstrate the complainant’s motive to falsely accuse him of molestation.” Id.

However, trial judges may place limitations on the scope and extent of crossexamination so long as those limitations do not infringe on the Confrontation Clause’s guarantee

of “an opportunity for effective cross-examination.” Id. Wide latitude is afforded to trial judges’

restrictions on cross-examination based on criteria such as “harassment, prejudice, confusion of

the issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant.”

Id. at 910 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). But the Constitution

“could be offended if a state evidentiary rule prohibited the defendant from cross-examining a

witness concerning possible motives, bias, and prejudice to such an extent [that] he could not

present a vital defensive theory.” Id.

Cross-examination “to show that [a] witness has suffered a recent mental illness

or disturbance is proper, provided that such mental illness or disturbance is such that it might

tend to reflect upon the witness’s credibility.” Virts v. State, 739 S.W.2d 25, 30 (Tex. Crim.

App. 1987). But “the mere fact that the State’s testifying witness has in the recent past suffered

or received treatment for a mental illness or disturbance does not, for this reason alone, cause this

kind of evidence to become admissible impeachment evidence.” Id. The admissibility of

mental-illness evidence is necessarily an ad hoc decision, and “great deference” is given to the

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trial court’s decision on admissibility. Id.; see Pierce v. State, No. 03-00-00307-CR, 2001 Tex.

App. LEXIS 829, at *11 (Tex. App.—Austin Feb. 8, 2001, no pet.) (mem. op., not designated for

publication). In determining whether mental-illness evidence is relevant, courts look to the

purpose for offering the evidence and whether there is a direct or logical connection between that

evidence and the proposition to be proved. Goodwin v. State, 91 S.W.3d 912, 917 (Tex. App.—

Fort Worth 2002, no pet.); see Lester v. State, No. 06-11-00118-CR, 2011 Tex. App. LEXIS

9728, at *3 (Tex. App.—Texarkana Dec. 14, 2011, no pet.) (mem. op., not designated for

publication).

An evidentiary ruling that denies a criminal defendant the constitutional right to

present a complete defense is subject to a harm analysis. Potier v. State, 68 S.W.3d 657, 666

(Tex. Crim. App. 2002) (noting that “the specific rule that applies to this error in admitting

evidence is Rule of Evidence 103(a),” which states that “[e]rror may not be predicated upon a

ruling which admits or excludes evidence unless a substantial right of the party is affected” and

that “the standard of review under that rule is the same as that under Rule of Appellate Procedure

44.2(b)”). Exclusion of evidence in a criminal trial should be disregarded unless it is

constitutional error or non-constitutional error that substantially affects the defendant’s rights.

Tex. R. App. P. 44.2(a)–(b). When a defendant’s evidence is excluded, it is constitutional error

“only if the evidence forms such a vital portion of the case that exclusion effectively precludes

the defendant from presenting a defense.” Potier, 68 S.W.3d at 665. Thus, exclusion of

evidence is not prejudicial if the defendant was not prevented from presenting the substance of

his defense to the jury. Id.

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1. Limitations on Cross-Examination of Child

Landin contends that the district court abused its discretion by not permitting

defense counsel to “thoroughly” cross examine Child about her mental-health history and mental

state to determine the reliability and credibility of her memory. The district court made two

partially adverse rulings limiting Child’s cross-examination by excluding: (1) any inquiry about

her Shoal Creek hospitalization in 2016 and (2) records from SafePlace documenting the

counseling services provided to Child and Mother However, a redacted version of Child’s

hospitalization records from Shoal Creek was subsequently admitted into evidence, and it

contained multiple references to her mental-health history and mental state, including: her

experiences of bullying; her feelings of depression, suicidal ideation, and believing that others

hated or disliked her; her increased desire for “superficial cutting” and “digging nails into skin”;

her concerns that she was bipolar; and the Prozac and Zyprexa medications that she took for her

“mood and anxiety symptoms” and “agitation.”

Further, although the SafePlace records were excluded, the district court allowed

Landin to explore certain information within them, including: the fact that Child had been to

SafePlace for counseling after the charged sexual abuse but before she made her outcry; that

there was a concern about Child’s safety as to mother’s “boyfriend” (Husband); and that Child

made no outcry about Landin and “never mentioned [him] during any of those sessions despite it

being a safe place for her to talk.”

On this record, even if we were to conclude that the district court erred as to the

limitations on Child’s cross-examination, we could not conclude that it was constitutional error,

as Landin contends. Cf. Tex. R. App. P. 44.2(a). As we have noted, the Constitution “could be

offended if a state evidentiary rule prohibited the defendant from cross-examining a witness

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concerning possible motives, bias, and prejudice to such an extent [that] he could not present a

vital defensive theory.” Johnson, 490 S.W.3d at 910. When a defendant’s evidence is excluded,

it is constitutional error “only if the evidence forms such a vital portion of the case that exclusion

effectively precludes the defendant from presenting a defense.” Potier, 68 S.W.3d at 665. If not,

it is non-constitutional error. See id. at 666 (concluding that because erroneous exclusion of

evidence “did not prevent appellant from presenting a defense” such error “was not of

constitutional dimension”).

Here, the district court’s ruling did not prevent Landin from using the Shoal Creek

hospitalization records to present his defense because the jury ultimately received those records,

which, despite their redactions, contained multiple references to Child’s mental-health history

and mental state. After the records were admitted, Landin did not re-call Child to cross-examine

her with those records.

Similarly, as to the exclusion of the SafePlace records, Landin was able to present

the content of the records through other evidence. He was able to establish through his

questioning of Child that she had been to SafePlace in 2011 due to concern for her own safety

and that of Mother. Landin used that information during Dr. Carter’s testimony to support the

defensive theory that other trauma in Child’s life may have caused false memories. Also, the

court also permitted Landin to call Valverde, who testified that Child and Mother received

counseling at SafePlace in 2011. Valverde relied on the information in the SafePlace records to

refresh her memory and testified that Mother sought counseling because of her “husband’s”

escalation of violence from September to December of 2010. Valverde also testified that

according to Mother, Child witnessed the violence. Valverde further testified that the “husband”

Mother complained about in the counseling sessions was not Landin. Moreover, during closing

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argument, Landin referenced Child’s 2011 counseling at SafePlace for household violence that

did not involve him and highlighted the lack of any outcry against him at the time:

So the more trouble in a child’s background, the more she has to sort through. Dr.

Carter said that. This doesn’t happen in a vacuum. Marcos [Landin] left her life

around 2009, 2010. This outcry happened in 2016. Years have passed. So it

didn’t happen in a vacuum. You need to look at what happened during that time.

What happened during that time? You have to take everything into account. She

received counseling in 2011 and before 2016 at SafePlace, a safe place where they

are trained to talk to the children. They’re trained to look for signs of abuse. And

she was there, and she said that, yes, she had the opportunity to express her fears

and to talk about her life, and this never came up. She was there at SafePlace

because some other thing happened. There was violence that escalated in her

household, not with him, Marcos Landin.

The record reflects that Landin was able to present his defensive theories at trial

incorporating the admitted evidence concerning Child’s mental state and mental-health history.

Because he failed to show that the district court’s limitations on his cross-examination of Child

deprived him of the opportunity to assert a vital defensive theory and because the limitations did

not deprive him of a substantial right, any error was non-constitutional and is disregarded under

the proper standard in Texas Rule of Appellate Procedure 44.2(b). See Potier, 68 S.W.3d at 666;

see also Tex. R. App. P. 44.2(b).

2. Limitations on Cross-Examination of Mother and SafePlace Counselor’s Testimony

Next, Landin contends that the district court abused its discretion by not

permitting defense counsel to “thorough[ly]” and “complete[ly]” cross examine Mother about

certain experiences that Child had that could have contributed to a false memory. Details of the

domestic abuse—physical and sexual—that Mother sustained are set forth in the SafePlace

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records that were excluded from evidence. Those records also show that Mother obtained a

protective order against Husband, the perpetrator of the domestic abuse.

Landin further contends that the district court abused its discretion by not

allowing Valverde to provide “full testimony” about her sessions at SafePlace with Child and

about the effects on Child of the “family violence” referenced in the SafePlace records. He

contends that Valverde should have been allowed to testify about her three counseling sessions

with Child in 2017 as to the effects that Child attributed to her sexual abuse. Outside the

presence of the jury, Valverde testified about those counseling sessions in 2017, after Child made

her outcry. Valverde stated that those sessions focused on the impact of the sexual abuse Child

suffered rather than the details of it and that Child reported that she had difficulty sleeping and

that she had “memories and triggers at home” that reminded her of the sexual abuse that had

occurred.

However, even if we were to conclude that the district court erred as to the

limitations on Mother’s cross-examination or on Valverde’s testimony, we could not conclude

that either was constitutional error, as Landin contends. Cf. Tex. R. App. P. 44.2(a). Exclusion

of evidence deemed inadmissible under the Rules of Evidence can rise to the level of

constitutional error if doing so “effectively precludes the defendant from presenting a defense.”

Potier, 68 S.W.3d at 665. Here, the district court admitted records from Carousel Pediatrics

noting that Mother sustained domestic abuse and that Child had also received counseling.

Valverde testified about Mother’s report that Child had witnessed domestic violence, which

defense counsel contended was “a big part of Mr. Landin’s defense.” Valverde also testified that

Child was involved in counseling “basically throughout the year of 2011.” Further, the records

admitted into evidence from Child’s mental-health hospitalization at Shoal Creek in 2016

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contained substantial detail about her mental state, including her hearing voices, her suicidal

ideation, her concern that she was bipolar, her history of cutting herself, and her prescribed

medications for “mood and anxiety symptoms” and “agitation.” Additionally, Landin elicited

testimony from Dr. Carter tending to support the false memory-theory, including his expert

opinions that children who have traumatic household experiences, such as domestic violence, can

experience the same symptoms as children who suffer from sexual abuse; that “the more troubled

a child’s background, the more she has to sort through in telling us her life story”; and that false

memories could be created from unrelated events, blending things that are real with those that are

not.

The record reflects that neither the limitation on Mother’s cross-examination

concerning certain experiences Child had to Husband’s domestic abuse of Mother nor the

limitation on Valverde’s testimony as to her sessions at SafePlace with Child or the effects of

Child’s exposure to “family violence” prevented Landin from establishing facts that were

relevant to his false-memory theory. Landin was able to question Dr. Carter using hypotheticals

based on the effects of children’s exposure to domestic violence, establish the similarity of

symptoms in children who suffer from domestic violence and children who suffer from sexual

abuse, and present a defensive theory to the jury through Dr. Carter’s acknowledgement that

certain events raised the possibility of a child’s false memories. Thus, any error in the district

court’s rulings as to limitations on Mother’s cross-examination or Valverde’s testimony was nonconstitutional, did not deprive him of a substantial right, and is disregarded under the proper

standard in Texas Rule of Appellate Procedure 44.2(b). See id. at 666; see also Tex. R. App. P.

44.2(b).

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3. Exclusion of Records from Child Protective Services and “Medical Records”

Finally, Landin contends that the district court abused its discretion by excluding

“pertinent CPS [Child Protective Services] and medical records” showing Child’s mental-health

history and her state of mind. Landin fails to identify the “medical records” that are the basis of

this complaint. We will construe this contention as challenging the exclusion of the SafePlace

records relating to Child’s mental-health history and her state of mind.

As the State correctly notes, the primary recipient of counseling services at

SafePlace was Mother, not Child. Mother sought counseling at SafePlace because of the

domestic abuse perpetrated against her by Husband, not Landin. During his offer of proof,

Landin’s counsel contended that the SafePlace records contained evidence that Child heard

voices for a long time, heard arguments in her house “going to the home situation leading to the

outcry,” and that Child was “pretty much abused” by Husband physically, but not sexually.

When the district court questioned the relevance of that information to Landin’s charged acts of

sexual abuse against Child, Landin’s counsel stated,

We believe it’s relevant, Your Honor, because it could be the basis for maybe a

false memory that was created based on all the trauma that she suffered. That is

something that maybe the experts can talk about. But we believe that it’s relevant

for that. It could be a false memory. It could be misattribution. It could be

something like that . . . [is] the reason why she’s actually saying that Marcos

[Landin] did something to her.

However, even if we were to conclude that the district court erred as to the

exclusion of the records, we could not conclude that it was constitutional error, as Landin

contends. Cf. Tex. R. App. P. 44.2(a). Exclusion of evidence deemed inadmissible under the

Rules of Evidence can rise to the level of constitutional error if doing so “effectively precludes

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the defendant from presenting a defense.” Potier, 68 S.W.3d at 665. As we have discussed, the

jury heard about the reports of domestic abuse through other evidence admitted during trial.

Landin elicited testimony that Child had been to SafePlace for counseling after the charged

sexual abuse but before she made her outcry, that there was a concern about Child’s safety as to

Mother’s “boyfriend” (Husband), and that Child made no outcry about Landin and “never

mentioned [him] during any of those sessions despite it being a safe place for her to talk.” The

jury had ample evidence of Child’s mental health from the records of her hospitalization at Shoal

Creek, and Landin pursued his false-memory theory through his questioning of Dr. Carter, who

testified that children exposed to domestic violence and children who suffer from sexual abuse

can experience the same symptoms, that a false memory can result from the changing of a

memory over time as subsequent experiences are added, and that false memories can be created

from unrelated events, blending things that are real with those that are not. We conclude that

Landin has not shown that the district court’s exclusion of the SafePlace records deprived him of

the ability to show Child’s mental-health history and her state of mind as it pertained to his

defensive theory at trial.

With regard to the CPS records, Landin contended in his offer of proof that he

wanted to use the records to show that Child once claimed that she was in Mexico with him and

that there were other reports of family violence. But the jury heard about that information

through other admitted evidence. As we have noted, the jury heard reports about Mother

suffering domestic abuse perpetrated by Husband, Child witnessing that domestic abuse, and

Mother expressing concerns about Child’s safety around Husband. The jury also heard from

pediatric nurse practitioner Kimberly Ferris, who prepared a document summarizing her well-

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child examination of Child in February 2016 that was part of the excluded CPS records. Ferris

testified,

I wrote in the office at the well-child visit, “Reports previous history of sexual

abuse from stepfather, Marcos [Landin]. Marcos is in Mexico per family. Events

happened between ages three and four in Mexico and in the U.S. between ages six

and seven. Police involved, and report has been made. Patient is starting

counseling today. No contact with Marcos. Mother of child is aware.” And then

the only additional thing in the CPS report was “She denies ongoing abuse, denies

penetration. Per patient, she was only touched by him.”

Because Landin’s professed need for the CPS and SafePlace records was met

through other admitted evidence, he failed to demonstrate that the district court’s ruling

excluding those records deprived him of a substantial right. See Potier at 666. Thus, any error

in the district court’s rulings excluding the SafePlace and CPS records was non-constitutional

and is disregarded under the proper standard in Texas Rule of Appellate Procedure 44.2(b). See

id.; see also Tex. R. App. P. 44.2(b).

Having considered all of Landin’s sub-issues, we conclude that Landin was able

to present the substance of his defenses to the jury and that the district court’s limitations on the

cross-examination of some witnesses and the exclusion of certain evidence did not form such a

vital portion of the case that Landin was effectively precluded from presenting a defense. See

Potier, 68 S.W.3d at 665. Accordingly, we overrule Landin’s sole appellate issue.

We affirm the district court’s judgments of conviction.