Jose Luis Espinoza v. the State of Texas

NUMBER 13-24-00173-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG


JOSE LUIS ESPINOZA,                                                         Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


             ON APPEAL FROM THE 103RD DISTRICT COURT
                   OF CAMERON COUNTY, TEXAS


                          MEMORANDUM OPINION

        Before Chief Justice Tijerina and Justices West and Cron
                Memorandum Opinion by Justice Cron

      A jury convicted appellant Jose Luis Espinoza of one count of continuous sexual

abuse of a young child, a first-degree felony, and two counts of indecency with a child by

sexual contact (breast touching), second-degree felonies. See TEX. PENAL CODE

§§ 21.02(b), (g), 21.11(a)(1), (d). The jury sentenced Espinoza to prison terms of twenty-
five years on the first-degree felony and twenty years on each second-degree felony, and

the trial court ordered the sentences to run concurrently. By nine issues, which we have

reorganized, Espinoza complains that: (1) the evidence was insufficient to support his

conviction for continuous sexual abuse because the State failed to prove the duration

element of the offense; (2) his convictions for indecency with a child constitute double

jeopardy violations; (3–5) for multiple reasons, the trial court erred in admitting certain

outcry testimony; (6) the trial court erred in admitting evidence of Espinoza’s extraneous

offenses and bad acts; (7) the trial court erred in admitting the complainants’ medical

records; (8) the trial court erred in allowing expert testimony commenting on the

complainants’ credibility; and (9) even if the trial court’s individual errors were harmless,

the cumulative effect of those errors resulted in harm to Espinoza. We affirm.

                                         I.      BACKGROUND

         Cousins B.H. and P.P. are the complainants in this case, and Espinoza was their

step grandfather. 1 Count I of the indictment alleged that, “during a period that was 30 or

more days in duration,” Espinoza, an adult, committed two or more acts of sexual abuse

against B.H. “AND/OR” P.P., children under the age of fourteen, by touching the genitals

of both children and causing P.P. to touch his genitals. In Counts II and III, the State

alleged that Espinoza committed indecency with a child “by touching the breast” of each

child.




         1 To protect the identity of the complainants, we refer to them by the pseudonyms given to them in

the indictment. See TEX. CODE CRIM. PROC. art. 58.102(a). We likewise refer to certain family members by
pseudonyms.
                                                    2
      B.H., eighteen years old at the time of trial, testified that she had known Espinoza

since “childhood” and would see him when she visited her grandmother’s home, which

occurred “[p]retty often.” The abuse began when she “was nine to ten” years old. Initially,

Espinoza would touch her in ways that were not overtly sexual, but “[i]t progressed to him

touching [her] chest” and “[her] vagina and [her] butt.” Espinoza would use “[h]is hands”

to “grope” these areas of her body over her clothing. “Over the span of a year,” this

occurred “twenty to thirty times,” and each incident involved Espinoza touching the same

parts of B.H.’s body.

      P.P., sixteen years old at the time of trial, testified that she previously lived with

her grandmother and Espinoza. P.P. and her grandmother slept inside the main house,

but Espinoza slept by himself in an addition built onto the home. P.P. said the abuse

began when she “was around seven to eight years old.” The first incident occurred in

Espinoza’s room and involved him rubbing his penis against her vagina over her clothes.

She recalled another incident when he pulled his penis out, moved her underwear, and

rubbed his penis against her bare vagina. She said there were other times he did the

same things to her and that there was at least one instance when he touched her

“breasts.” She also recalled an incident where he made her touch his penis with her hand

over his underwear. During some of these encounters, Espinoza would masturbate in

front of P.P. and ejaculate on the floor. Although P.P. was certain that the abuse occurred

“more than four times,” she could not say how long the abuse continued. For instance,

when the State asked whether the abuse occurred over a period of “more than a month,”

P.P. responded, “I don’t remember.” When asked “how much time passed” between the


                                            3
first and last incident, P.P. answered, “I don’t exactly remember.”

       The jury also heard testimony from several outcry witnesses, a school counselor,

and two sexual assault nurse examiners (SANE). Each of these witnesses testified that

one or both complainants previously made statements accusing Espinoza of various

forms of sexual abuse. Throughout the trial, Espinoza attempted to discredit the

complainants by highlighting purported inconsistencies between their prior statements

and testimony.

       Espinoza’s primary defensive theories at trial were fabrication and lack of

opportunity. He called nine witnesses, many of whom were related to Espinoza by

consanguinity. These witnesses generally testified to Espinoza’s good character and

expressed disbelief that he committed the offenses. Some of them testified that they had

no reservations about leaving their young children in Espinoza’s care after the allegations

surfaced. One witness, the complainants’ uncle, suggested that his sister M.J., P.P.’s

mother, was involved in fabricating the allegations because of a long-running feud

between her and Espinoza about who should inherit the grandmother’s estate, including

the home M.J., P.P., Espinoza, and the grandmother resided in before she passed away.

The jury also heard testimony that before her passing, the grandmother did not believe

the allegations and accused the children of “lying.”

       The jury found Espinoza guilty of all three offenses and sentenced him as detailed

above. This appeal ensued.

                                   II.    SUFFICIENCY

       Espinoza first claims the evidence is insufficient to support his conviction for


                                            4
continuous sexual abuse because the State failed to prove the duration element beyond

a reasonable doubt.

A.     Standard of Review

       To satisfy constitutional due process requirements, a criminal conviction must be

supported by sufficient evidence. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.

2009). “Evidence is sufficient to support a criminal conviction if a rational jury could find

each essential element of the offense beyond a reasonable doubt.” Stahmann v. State,

602 S.W.3d 573, 577 (Tex. Crim. App. 2020) (citing Jackson v. Virginia, 443 U.S. 307,

319 (1979)). In a legal sufficiency review, “we consider all the evidence in the light most

favorable to the verdict and determine whether, based on that evidence and reasonable

inferences therefrom, a rational juror could have found the essential elements of the crime

beyond a reasonable doubt.” Hammack v. State, 622 S.W.3d 910, 914 (Tex. Crim. App.

2021). Our obligation to review “all the evidence” includes evidence that may have been

improperly admitted. Moff v. State, 131 S.W.3d 485, 489–90 (Tex. Crim. App. 2004).

       We measure the sufficiency of the evidence against “the elements of the offense

as defined by the hypothetically correct jury charge for the case.” Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct 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 unnecessarily restrict the State’s theories of

liability, and adequately describes the particular offense for which the defendant was tried.

Id.




                                             5
      “To obtain a conviction for continuous sexual abuse of a child, the State must show

that the defendant committed at least two acts of sexual abuse against [one or more

victims] younger than 14 years of age during a period of at least 30 days’ duration.”

Ramos v. State, 636 S.W.3d 646, 651 (Tex. Crim. App. 2021) (citing TEX. PENAL CODE

§ 21.02(b)). “[M]embers of the jury are not required to agree unanimously on which

specific acts of sexual abuse were committed by the defendant or the exact date when

those acts were committed.” TEX. PENAL CODE § 21.02(d). But the proof must establish,

beyond a reasonable doubt, a period of “at least 28 days between the day of the first act

of sexual abuse and the day of the last act of sexual abuse.” Perez v. State, 689 S.W.3d

369, 378 (Tex. App.—Corpus Christi–Edinburg 2024, no pet.) (quoting Smith v. State,

340 S.W.3d 41, 48 (Tex. App.—Houston [1st Dist.] 2011, no pet.)); see Pelcastre v. State,

654 S.W.3d 579, 586 (Tex. App.—Houston [14th Dist.] 2022, pet. ref’d); Turner v. State,

573 S.W.3d 455, 461 (Tex. App.—Amarillo 2019, no pet.). The uncorroborated testimony

of a child victim can legally support a conviction for a sexual offense. TEX. CODE CRIM.

PROC. art. 38.07(b)(1).

B.    Analysis

      Espinoza argues the State failed to prove the duration element of the offense

because “the trial record is incomplete regarding the dates of the alleged abuse” and

there was no contextual evidence that would allow a reasonable juror to conclude that

two or more acts of sexual abuse occurred at least thirty days apart.

      To begin, the State was not required to prove the exact dates of abuse. See TEX.

PENAL CODE § 21.02(d); Michell v. State, 381 S.W.3d 554, 561 (Tex. App.—Eastland


                                            6
2012, no pet.) (“The legislature created the offense of continuous sexual abuse of a child

in response to a need to address sexual assaults against young children who are normally

unable to identify the exact dates of the offenses when there are ongoing acts of sexual

abuse.”). Rather, the State was only required to prove that there were two or more acts

of sexual abuse that occurred during a period that was thirty or more days in duration.

See TEX. PENAL CODE § 21.02(b)(1); Perez, 689 S.W.3d at 378. To that end, B.H. testified

that, beginning when she was nine or ten years old, Espinoza “grope[d]” her vagina over

her clothing “twenty to thirty times” during “the span of a year.” See TEX. PENAL CODE

§§ 21.02(c)(2) (defining “act of sexual abuse” to include indecency with a child by sexual

contact), 21.11(c)(1) (defining “sexual contact” to mean “any touching by a person,

including touching through clothing, . . . any party of the genitals of the child”). This

evidence alone was legally sufficient to establish the duration element of the offense. See

TEX. PENAL CODE § 21.02(b)(1); TEX. CODE CRIM. PROC. art. 38.07(b)(1); Perez, 689

S.W.3d at 378. Espinoza’s first issue is overruled.

                                III.   DOUBLE JEOPARDY

      Espinoza next complains that his convictions for indecency with a child by sexual

contact constitute double-jeopardy violations because these offenses were predicate acts

of sexual abuse committed against the same complainants during the period of

continuous sexual abuse. See TEX. PENAL CODE § 21.02(e).

      The Double Jeopardy Clause of the Fifth Amendment, which is applicable to the

states through the Fourteenth Amendment, protects a person from multiple punishments

for the same offense. U.S. CONST. amends. V, XIV; Garfias v. State, 424 S.W.3d 54, 58


                                            7
(Tex. Crim. App. 2014). “In the multiple-punishments context, two offenses may be the

same if one offense stands in relation to the other as a lesser-included offense, or if the

two offenses are defined under distinct statutory provisions but the Legislature has made

it clear that only one punishment is intended.” Littrell v. State, 271 S.W.3d 273, 275–76

(Tex. Crim. App. 2008). By enacting section 21.02(e) of the Texas Penal Code, “the

Legislature clearly intended to disallow dual convictions for the offense of continuous

sexual abuse and for offenses enumerated as ‘acts of sexual abuse’ when [both

convictions are] based on conduct against the same child during the same period of time.”

Price v. State, 434 S.W.3d 601, 606 (Tex. Crim. App. 2014).

      This issue is easily dispatched because breast touching is expressly excluded as

an “act of sexual abuse” that can support a conviction for continuous sexual abuse, TEX.

PENAL CODE § 21.02(c)(2), which means section 21.02(e)’s prohibition on multiple

convictions does not apply in this case. See id. § 21.02(e). Espinoza’s second issue is

overruled.

                               IV.    OUTCRY WITNESSES

      In issues three through five, Espinoza argues the trial court erred in the admission

of certain outcry testimony because the State failed to provide timely notice for three of

its outcry witnesses, because B.H. was fifteen years old at the time she made her outcry

to one of the witnesses, and because the trial court allowed multiple outcry witnesses to

testify about the same allegations of sexual abuse.

A.    Relevant Facts

      On November 3, 2022, the State notified Espinoza that B.H.’s outcry witnesses


                                            8
would be her mother D.H. and her school counselor Ivonne Ceballos, and P.P.’s outcry

witnesses would be her mother M.J. and forensic interviewer Jessica Davila.

       On March 13, 2024, five days before trial, Espinoza filed a “motion to clarify outcry

witness” arguing: (1) there should only be one outcry witness for each complainant; and

(2) the discovery provided by the State indicated that Ceballos was the proper outcry

witness for B.H. and that P.P.’s sister S.J. was the proper outcry witness for P.P.

       Later that same day, the State filed an amended notice identifying two new outcry

witnesses for B.H. The notice specified that, in addition to the previously disclosed outcry

statements made to D.H. and Ceballos, B.H. also made outcries to school nurse Nereida

Meza and Davila, the forensic interviewer. Two days later, the State filed its second

amended notice identifying P.P.’s sister S.J. as a third outcry witness for P.P. In total, the

second amended notice identified seven outcry witnesses for the two complainants.

       After the jury was selected and empaneled, the trial court conducted an outcry

hearing outside the jury’s presence. The State offered five potential outcry witnesses,

Meza, Ceballos, D.H., S.J., and Davila. Meza testified that she was a school nurse at

B.H.’s middle school in June 2021, when B.H. came to her office complaining of an anxiety

attack. B.H. told Meza that her “step-grandfather” “touched [her] on her upper and lower

regions when she was around nine or ten years old.” B.H. gestured to her breast and

“lower private area,” and Meza understood B.H.’s statement to mean that B.H. had been

“sexually abused.” Meza believed she was the first person B.H. reported these allegations

to. Meza referred B.H. to Cabellos, the school counselor, who spoke to B.H. later that

same day.


                                              9
      Cabellos testified that B.H. “disclosed that she had been touched in the upper and

lower levels, over her clothing, when she was nine to ten years old.” B.H. identified her

abuser as her “grandmother’s husband” and said the abuse occurred “more than ten

times” during a period that lasted approximately “a year.”

      D.H. denied that B.H. made any statements to her about being sexually abused

and was summarily excused from the hearing.

      S.J. testified that in 2018 or 2019, P.P. told her that Espinoza had touched her

“butt” and “breast” over her clothes. She said that P.P. later reported a separate incident

where Espinoza exposed his penis to P.P.

      Davila, the last witness called at the hearing, conducted B.H.’s forensic interview

in August of 2021, and B.H. reported that Espinoza touched “her chest, bottom, and

middle part area” over her clothing “multiple” times. Davila also interviewed P.P., who

reported that Espinoza touched “her chest and middle part, and she also made an outcry

of [Espinoza] making her touch his middle part.”

      Espinoza raised three objections during the hearing: (1) Meza and S.J. should be

the only outcry witnesses because they were the first adults to whom the children made

their outcries; (2) Davila could not testify as an outcry witness for P.P. because P.P. was

fifteen years old when she gave her statement to Davila; and (3) to the extent that P.P.

made additional allegations of sexual abuse to Davila, P.P. made the same additional

allegations to a “CPS worker” a month prior to the interview with Davila, making that

person the “correct outcry” witness. The trial court found that Meza and S.J. were proper

outcry witnesses for B.H. and P.P., respectively, and that Davila was a proper outcry


                                            10
witness for both children because they disclosed additional allegations of sexual abuse

to Davila that were not reported to the other witnesses, including the unnamed “CPS

worker.” The trial court also held that the outcry statute only required the statement to be

made while the complainant was a “child,” and because P.P. gave her statement to Davila

when she was fifteen, Davila was a proper outcry witness.

       The three witnesses subsequently testified at trial, and their testimony largely

tracked their testimony during the outcry hearing.

B.     Standard of Review & Applicable Law

       Hearsay is an out of court statement offered at trial for the truth of the matter

asserted in the statement. TEX. R. EVID. 801(d). Hearsay is generally inadmissible unless

an exception applies. Id. R. 802. “Article 38.072 of the Texas Code of Criminal Procedure,

the outcry statute, is a hearsay exception statutorily limited to live testimony of the outcry

witness.” Bays v. State, 396 S.W.3d 580, 581 (Tex. Crim. App. 2013). An outcry witness

is “the first person, 18 years of age or older, other than the defendant, to whom the child

made a statement about the offense.” TEX. CODE CRIM. PROC. art. 38.072, § 2(a)(3).

Stated differently, the outcry witness is “the first adult a child confides in regarding the

abuse.” Martinez v. State, 178 S.W.3d 806, 811 (Tex. Crim. App. 2005).

       Before admitting outcry testimony, the trial court must hold a hearing outside the

presence of the jury to determine if the hearsay statement is “reliable based on the time,

content, and circumstances of the statement.” TEX. CODE CRIM. PROC. art. 38.072,

§ 2(b)(2). To qualify for the exception, “[t]he statement must be more than words which

give a general allusion that something in the area of child abuse is going on; it must be


                                             11
made in some discernable manner and is event-specific rather than person-specific.”

Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011) (citation modified). Hearsay

testimony from more than one outcry witness may be admissible under Article 38.072 so

long as each of the witnesses testifies to a different instance of sexual abuse. TEX. CODE

CRIM. PROC. art. 38.072, § 2(a-1)(2); Lopez, 343 S.W.3d at 140. “The testimony of a

second outcry witness is not admissible, however, when the witness merely provides

additional details regarding the same instance of sexual abuse.” Rodriguez v. State, 689

S.W.3d 386, 392 (Tex. App.—Corpus Christi–Edinburg 2024, pet. ref’d); Brown v. State,

189 S.W.3d 382, 387 (Tex. App.—Texarkana 2006, pet. ref’d) (“[B]efore more than one

outcry witness may testify, it must be determined the outcry concerned different events

and was not simply a repetition of the same event told to different individuals.”).

       As a condition of admissibility, the State must notify the defendant of its intent to

offer outcry testimony at least fourteen days prior to trial, and the notice must identify the

name of the witness and provide a written summary of the outcry statement. TEX. CODE

CRIM. PROC. art. 38.072, § 2(b)(1); Martinez, 178 S.W.3d at 811 (“The State must provide

adequate pretrial notice to the defendant of its intent to introduce the child outcry

statement, and it must provide the name of the outcry witness and a summary of the

hearsay statement.”).

       “A trial court has broad discretion in determining the admissibility of outcry

statements pursuant to this statute, and the trial court’s exercise of that discretion will not

be disturbed on appeal unless a clear abuse of discretion is established by the record.”

Marquez v. State, 165 S.W.3d 741, 746 (Tex. App.—San Antonio 2005, pet. ref’d). A trial


                                              12
court abuses its discretion if it acts arbitrarily or unreasonably, without reference to any

guiding rules or principles. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019).

       The erroneous admission of a hearsay statement constitutes nonconstitutional

error that must be disregarded unless the error affects the appellant’s substantial rights.

Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011); see TEX. R. APP. P. 44.2(b).

A substantial right is one that has a substantial and injurious effect or influence in

determining the jury’s verdict. Rich v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005).

An appellate court should not overturn a criminal conviction for nonconstitutional error “if

the appellate court, after examining the record as a whole, has fair assurance that the

error did not influence the jury, or influenced the jury only slightly.” Barshaw, 342 S.W.3d

at 93 (quoting Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001)). In assessing

the likelihood that the jury’s decision was adversely affected, the appellate court should

consider everything in the record, including any testimony or physical evidence admitted

for the jury’s consideration, the nature of the evidence supporting the verdict, and the

character of the alleged error and how it might be considered in connection with other

evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). “In

cases involving the improper admission of outcry testimony, the error is harmless when

the victim testifies in court to the same or similar statements that were improperly admitted

or other evidence setting forth the same facts is admitted without objection.” Gibson v.

State, 595 S.W.3d 321, 327 (Tex. App.—Austin 2020, no pet.) (collecting cases).

C.     Timely Disclosure Complaint Forfeited

       Espinoza first argues that the trial court erred by allowing Meza and Davila to testify


                                             13
as outcry witnesses for B.H. and by allowing S.J. to testify as an outcry witness for P.P.

because the State failed to timely disclose them as outcry witnesses under Article 38.072.

See TEX. CODE CRIM. PROC. art. 38.072, § 2(b)(1)(A). The State confesses error but

argues the erroneous admission of this evidence was harmless.

        Regardless of whether the State’s disclosure was untimely with respect to these

witnesses, we have found no record of Espinoza objecting to their outcry testimony on

these grounds. To preserve error for appellate review, “an issue on appeal must comport

with the objection made at trial.” Walker v. State, 469 S.W.3d 204, 210 (Tex. App.—Tyler

2015, pet. ref’d) (first citing Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012);

and then citing Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990)); see TEX.

R. APP. P. 33.1(a). Accordingly, Espinoza has forfeited his third issue. See Walker, 469

S.W.3d at 210; TEX. R. APP. P. 33.1(a).

D.      P.P. Was Still a “Child” When She Outcried to Davila

        Espinoza next argues that the trial court erred in permitting Davila to testify as an

outcry witness for P.P. because, although P.P. was younger than fourteen when the

alleged abuse occurred, she was fifteen when she made her outcry to Davila.

        Espinoza’s complaint is a matter of statutory construction that we review de novo.

See Cary v. State, 507 S.W.3d 750, 756 (Tex. Crim. App. 2016). The relevant version of

Article 38.072 2 “applies to a proceeding in the prosecution of [certain offenses, including

continuous sexual abuse of a young child and indecency with a child], if committed against


        2 We are citing the version of Article 38.072 that was in effect when Espinoza allegedly committed

the offenses and P.P. made her outcry to Davila. See Act of April 7, 2011, 82nd Leg., R.S., ch. 1, § 2.07,
sec. 1, 2011 Tex. Gen. Laws 1, 5 (amended 2023, 2025) (current version at TEX. CODE CRIM. PROC. art.
38.072 § 1).
                                                   14
a child younger than 14 years of age.” TEX. CODE CRIM. PROC. art. 38.072, § 1. The statute

then defines an outcry witness as “the first person, 18 years of age or older, other than

the defendant, to whom the child made a statement about the offense.” Id. art. 38.072,

§ 2(a)(3) (emphasis added). Invoking the “presumption of statutory consistency,” State v.

Villa, 707 S.W.3d 263, 266–67 (Tex. Crim. App. 2024) (“A word or phrase that is used

within a single statute generally bears the same meaning throughout that statute.”

(quoting Ex parte Keller, 173 S.W.3d 492, 498 (Tex. Crim. App. 2005))), Espinoza

contends that the phrase “child younger than 14 years of age” in section 1 informs the

meaning of the term “child” under section 2(a)(3). In his view, it would be inconsistent to

give “child” its ordinary meaning under section 2(a)(3) when the outcry statute only applies

to sexual offenses “committed against a child younger than 14 years age.” Espinoza

concludes that for an outcry statement to be admissible, both the offense and the outcry

must occur before the child turns fourteen.

       Espinoza acknowledges that several of our sister courts have reached the opposite

conclusion, but he urges us to chart a new path. See Olvera v. State, 694 S.W.3d 843,

846–47 (Tex. App.—Houston [14th Dist.] 2024, no pet.) (rejecting a similar argument and

concluding “that an outcry witness may be designated when the child declarant is younger

than eighteen years of age at the time of the outcry”); Gutierrez v. State, 630 S.W.3d 270,

278 (Tex. App.—Eastland 2020, pet. ref’d) (same); Harvey v. State, 123 S.W.3d 623, 629

(Tex. App.—Texarkana 2003, pet. ref’d) (same); see also Olivera v. State, No. 05-08-

00527-CR, 2009 WL 3740781, at *7 (Tex. App.—Dallas Nov. 10, 2009, pet. ref’d) (not

designated for publication) (same). The through line between these cases is the


                                              15
conclusion that Article 38.072 does not expressly define “child” so the term should be

given its ordinary meaning under section 2(a)(3)—that is, someone who has not reached

the age of majority. See TEX. CODE CRIM. PROC. art. 3.01 (“All words, phrases and terms

used in this Code are to be taken and understood in their usual acceptation in common

language, except where specially defined.”); Child, Black’s Law Dictionary (12th ed. 2024)

(“An unemancipated person under the age of majority.”).

      Espinoza has not persuaded us that these cases were wrongly decided. “Article

38.072 is a rule of evidence admissibility” with well-defined guardrails. Martinez, 178

S.W.3d at 810–11 (discussing the various statutory requirements that must be met before

an outcry statement is admissible). Espinoza’s approach, on the other hand, requires us

to infer that the Legislature intended to impose an additional limitation on this hearsay

exception that does not appear in the plain text of section 2(a)(3) and has never been

recognized by any other court. See Sommers for Alabama & Dunlavy, Ltd. v. Sandcastle

Homes, Inc., 521 S.W.3d 749, 754 (Tex. 2017) (directing appellate courts to “analyze a

statute as a cohesive, contextual whole, accepting that lawmaker-authors chose their

words carefully, both in what they included and in what they excluded”). In other words,

had the Legislature intended to further limit outcry statements to only those made by “the

child, while younger than 14 years of age,” it could have easily said so. We join those

courts in concluding that an outcry witness may be designated when the child declarant

is younger than eighteen years of age at the time of the outcry.

      Because P.P. was fifteen years old when she made her outcry to Davila, she was

a “child” for purposes of section 2(a)(3). See Olvera, 694 S.W.3d at 846–47; Gutierrez,


                                           16
630 S.W.3d at 278; Harvey, 123 S.W.3d at 629. Espinoza’s fourth issue is overruled.

E.     Multiple Outcry Witnesses

       In his last challenge to the admission of the outcry evidence, Espinoza asserts it

was error to allow Davila to testify as an additional outcry witness for both children “without

clear evidence that she testified to a distinct incident of abuse for each child.” Without

citation to the record or elaboration, Espinoza also claims that “Davila’s trial testimony

established key dates and events” that were not included in B.H.’s or P.P.’s testimony.

       Assuming without deciding that it was error to permit Davila to testify as an

additional outcry witness for both children, Espinoza has not demonstrated reversible

error because the children testified to the same acts of sexual abuse in greater detail than

Davila. See Gibson, 595 S.W.3d at 327; Lewis v. State, 693 S.W.3d 453, 468 (Tex. App.—

Houston [14th Dist.] 2023, pet. ref’d) (concluding that “any error in the admission of

testimony from Detective Ibarra, Bourgoyne, Dr. Crowson, and Fields-Frazier about

Fiona’s out-of-court statements confirming that she had been sexually abused was

harmless, because Fiona, Mother, and Dr. Isaac testified about the sexual abuse in much

greater detail”). Additionally, there is nothing in the record to support Espinoza’s claim

that Davila’s testimony “established key dates.” In fact, Davila did not provide any

testimony about the duration element of the continuous offense. Instead, as explained

above, B.H.’s testimony alone was legally sufficient to establish the duration element of

Count I, and there was ample evidence in the record establishing that each complainant

was a “child” at the time of the offenses. Espinoza’s fifth issue is overruled.




                                              17
                                    V.       EXTRANEOUS OFFENSES

        By his sixth issue, Espinoza complains that the trial court erred by admitting certain

evidence of his extraneous offenses and bad acts during the guilt/innocence phase of trial

because the State failed to comply with the notice provision of Rule 404(b)(2). See TEX.

R. EVID. 404(b)(2).

A.      Relevant Facts

        On October 5, 2022, citing Rule 404(b), Espinoza served the State with a request

to provide timely notice of “its intent to introduce evidence in its case in chief of any other

crimes, wrongs, or acts allegedly committed by [Espinoza], other than those alleged in

the Indictment.” Trial began on the morning of Monday, March 18, 2024. The State served

Espinoza with its original notice “pursuant to Rule 404(b)” the preceding Friday at 3:57

p.m. As relevant here, the State disclosed for the first time that it intended to introduce

evidence of the following events:

        5.       Some time after the alleged abuse occurred when she was 7 or 8,
                 PP was taken to the doctor by her mother, and [Espinoza] drove
                 them. While PP was at the doctor, [Espinoza] left the car and walked
                 away from the doctor’s office. PP and her mother had to find
                 someone to come get them and take the car, as PP’s mother could
                 not drive.

        6.       Later, PP says that [Espinoza] told her in private that the reason he
                 left them at the doctor was he was afraid they were going to find
                 something on her while she was being checked.

        7.       PP says that [Espinoza] would promise her money, and sometimes
                 give her money after the alleged abusive acts.[3]
        3  The first three items in the notice were unindicted acts of sexual abuse Espinoza allegedly
committed against P.P., including that he would “move her underwear out of the way and rub his [bare]
penis against her private part.” These extraneous offenses fall outside the parameters of Rule 404 and are
subject to their own mandatory disclosure requirement. See TEX. CODE CRIM. PROC. art. 38.37, § 3
(requiring the State to provide notice “not later than the 30th day before the date of the defendant’s trial”).
Espinoza does not argue on appeal that the State failed to timely disclose these extraneous offenses. The
                                                     18
       The following Monday, between 10:10 a.m. and 10:28 a.m., the trial court heard

several pretrial matters, including Espinoza’s objection that the State’s original notice was

untimely under Rule 404(b)(2). Espinoza explained that he requested notice in 2022, that

the State’s notice less than seventy-two hours before trial was presumptively

unreasonable under caselaw, and, therefore, these untimely disclosed extraneous

offenses or bad acts should be “excluded.” The State responded that P.P. disclosed the

information for the first time during an interview the previous Friday and that the State

immediately filed its notice. Espinoza retorted that the State’s subjective intent is

irrelevant under Rule 404(b)(2) because the disclosure requirement is designed to ensure

adequate notice to the defendant. The trial court ultimately deemed the evidence

admissible because the allegations were being made by one of the complainants, and the

jury is “either going to believe that this [sexual abuse] happened or they’re not going to

believe that it happened.”

       At 10:18 a.m., while the parties were arguing about the timeliness of the original

notice, the State filed an amended notice “pursuant to Rule 404(b)” that included an

additional allegation: “After sexually abusing PP when she was 7 or 8 years old,

[Espinoza] would masturbate and ejaculate ‘sperm’ onto the floor.” We have found no

record of Espinoza objecting to the amended notice, and P.P. later testified to these facts

without objection.




fourth item concerned an act of sexual abuse alleged in the indictment—that “Espinoza would take PP’s
hand and make her touch his penis over the underwear”—so it is unclear why the State disclosed this
allegation as an “extraneous offense.”
                                                 19
B.     Standard of Review & Applicable Law

       “Evidence of a crime, wrong, or other act is not admissible to prove a person’s

character in order to show that on a particular occasion the person acted in accordance

with the character.” TEX. R. EVID. 404(b)(1). However, such “evidence may be admissible

for another purpose, such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.” Id. R. 404(b)(2). When a

defendant makes “a timely request” for disclosure in a criminal case, as occurred here,

“the prosecutor must provide reasonable notice before trial that the prosecution intends

to introduce such evidence—other than that arising in the same transaction—in its case-

in-chief.” Id. The “spirit” of the reasonable notice requirement is to provide the defendant

with an adequate opportunity “to prepare to defend against the extraneous offense

evidence.” Parker v. State, 727 S.W.3d 38, 65 (Tex. Crim. App. 2025), cert. filed, 727

S.W.3d 38. “Since the notice requirement of Rule 404(b) is a rule of evidence

admissibility, then it is error to admit Rule 404(b) evidence when the State has not

complied with the notice provision of Rule 404(b).” Hernandez v. State, 176 S.W.3d 821,

824 (Tex. Crim. App. 2005); Francis v. State, 445 S.W.3d 307, 315 (Tex. App.—Houston

[1st Dist.] 2013), aff’d, 428 S.W.3d 850 (Tex. Crim. App. 2014). Courts have found that

notice provided within three days of trial is unreasonable. See Neuman v. State, 951

S.W.2d 538, 540 (Tex. App.—Austin 1997, no pet.) (morning of jury selection); Hernandez

v. State, 914 S.W.2d 226, 234 (Tex. App.—Waco 1996, no pet.) (three days before trial).

C.     Error Preservation

       As a preliminary matter, relying on Duff-Smith v. State, 685 S.W.2d 26, 33 (Tex.


                                            20
Crim. App. 1985), the State contends that, although Espinoza objected to the admission

of the evidence based on a lack of adequate notice, he ultimately forfeited error by failing

to also request a continuance. This is so, according to the State, because a continuance

is “the proper remedy” when a defendant claims that an untimely disclosure prejudiced

his ability to prepare a defense.

       The State’s reliance on Duff-Smith is misplaced. In that case, the Texas Court of

Criminal Appeals held that the appellant failed to preserve error because “the proper

procedure when alleging surprise due to violation of a trial court’s order for discovery is

to object or ask for a postponement or continuance of the trial.” Id. (emphasis added)

(collecting cases). Thus, in a somewhat analogous context, a defendant is not required

to object to the admission of the evidence and request a continuance; either one will

suffice to preserve error. Id.

       Further, in Hernandez v. State, the seminal case on Rule 404(b)’s notice provision,

the Texas Court of Criminal Appeals reached the merits of the issue after the “[a]ppellant

complained during his capital murder trial that the prosecution did not provide him with

adequate notice of its intent to use various extraneous offenses that appellant committed.”

176 S.W.3d at 822. Nothing in the opinion suggests that the appellant requested a

continuance, or that doing so was a necessary additional step to preserve error. See id.

at 822–26. The Hernandez Court did explain that, rather than excluding the complained-

of evidence, a trial court may exercise its discretionary authority to fashion a remedy that

will “permit the State to bring itself in compliance with the notice provision of Rule 404(b),”

including “granting a continuance to reduce surprise” Id. at 824. But the Hernandez Court


                                              21
did not say, either expressly or implicitly, that the defendant bears any responsibility for

crafting a solution for the State’s untimely notice. See id. In sum, as the proponent of the

untimely noticed extraneous evidence, it may befit the State to suggest a curative

measure like a continuance, but we are aware of no authority requiring Espinoza to both

object to the admission of the evidence and request a continuance to preserve error.

       Espinoza’s objection to the original notice comported with general preservation

requirements. He objected to the admission of the evidence during a pretrial hearing, he

explained the specific basis for his objection, and the trial court expressly ruled on his

objection. See TEX. R. APP. P. 33.1(a). We conclude that Espinoza preserved his

complaint about the timeliness of the State’s original notice under Rule 404(b).

       However, as alluded to above, Espinoza failed to preserve error with respect to the

timeliness of the amended notice. Espinoza’s objection was specific to the timeliness of

the original notice. Although Espinoza was presumably unaware that the State filed an

amended notice with an additional extraneous offense during the pretrial hearing, the

record indicates that he was served with a copy of the latter notice, and yet he never

brought it to the trial court’s attention or objected when P.P. testified about Espinoza

masturbating in front of her. Therefore, albeit for a different reason, we agree with the

State that Espinoza failed to preserve error with respect to this particular extraneous

offense. See id.

D.     Abuse of Discretion

       The State concedes that its original notice was “untimely” and that if Espinoza did

preserve error, the trial court “abused its discretion in admitting” the complained-of


                                            22
evidence. 4 Although significant, we cannot blindly accept the State’s confession of error.

See Estrada v. State, 313 S.W.3d 274, 286 (Tex. Crim. App. 2010). “This Court must still

independently examine the error confessed because our judgments are precedents, and

the proper administration of the criminal law cannot be left merely to the stipulation of

parties.” Id. (citation modified).

        The trial court’s explanation for admitting the extraneous evidence missed the

mark. While we agree with the court’s observation that the outcome of the trial would

ultimately turn on the jury’s assessment of the complainants’ credibility, “it is error to admit

Rule 404(b) evidence when the State has not complied with the notice provision of Rule

404(b).” Hernandez, 176 S.W.3d at 824. As the high court recently reiterated, “the

purpose of Rule 404(b) is to prevent surprise,” Parker, 727 S.W.3d at 65, and we concur

with the State that its original notice of previously undisclosed bad acts less than seventy-

two hours before trial was “untimely” in this case. See Neuman, 951 S.W.2d at 540;

Hernandez, 914 S.W.2d at 234.

E.      Harmless Error

        Espinoza contends that the admission of these “bad acts surely had a substantial

impact on the jury.” He further claims, “The evidence provided an alleged mental state

consistent with the crimes. It also imputed a motive to influence its secrecy. The evidence


        4
           The State has not invoked any exception to Rule 404(b)’s notice requirements. For instance, the
State does not argue that any of the disclosed evidence actually constituted same-transaction contextual
evidence. See TEX. R. EVID. 404(b)(2) (requiring disclosure of extraneous offense evidence “other than that
arising in the same transaction”); see also Davis v. State, No. 01-16-00917-CR, 2017 WL 6001217, at *5
(Tex. App.—Houston [1st Dist.] Dec. 5, 2017, no pet.) (“Because this evidence arose out of the same
transaction as the charged offenses, the State was not required to provide pretrial notice of this evidence
to appellant under Rule 404(b)(2).”). Because we do not have the benefit of briefing on this topic and it does
not otherwise affect our disposition, we assume without deciding that the complained-of evidence was
subject to disclosure under Rule 404(b)(2).
                                                     23
is unique in that it provided the jurors with alleged actions by [Espinoza] to which they

c[ould] infer guilt.” The State acknowledges that this evidence was inculpatory but

maintains that adding it to the evidentiary mix was harmless.

       To begin, the State notified Espinoza that P.P., not B.H., would testify that

Espinoza “would promise her money, and sometimes give her money after the alleged

abusive acts.” Naturally, then, Espinoza’s pretrial objection sought to prevent P.P. from

testifying to these allegations. But at trial, B.H., who testified before P.P., said the same

thing happened to her, and Espinoza failed to object to this testimony on any grounds,

including that the State never disclosed this similar but distinct extraneous offense.

Because “the improper admission of evidence is harmless if the same or similar evidence

is admitted without objection at another point in the trial,” we conclude the erroneous

admission of P.P.’s testimony with respect to this bad act was harmless. Tharp v. State,

714 S.W.3d 118, 140 (Tex. App.—Austin 2024, no pet.) (citing Estrada v. State, 313

S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010)).

       That leaves P.P.’s testimony that Espinoza abandoned her and her mother at the

doctor’s office when she had an infection in her “private part.” According to P.P., Espinoza

later admitted that he left because he “thought they were going to find something” during

her examination. The children’s combined testimony spans approximately 100 pages of

the reporter’s record, while this particular testimony, including Espinoza’s additional

objections and the trial court’s rulings, was elicited over three pages. During closing

arguments, the State briefly mentioned that Espinoza told P.P. that he left “because he’s

afraid to get caught.” The State then suggested that Espinoza leaving the doctor’s office


                                             24
indicated a “consciousness of guilt,” but the State spent the bulk of its closing responding

to defensive theories about fabrication and lack of opportunity.

       We have observed that evidence showing “a consciousness of guilt may be one of

the strongest indicators of guilt.” Jones v. State, 722 S.W.3d 317, 324 (Tex. App.—Corpus

Christi–Edinburg 2025, no pet.) (citation modified). However, having examined the entire

record, including P.P.’s and B.H.’s direct and detailed testimony that Espinoza sexually

abused them, other properly admitted evidence corroborating their accounts, the nature

of the complained-of evidence in relation to this other evidence of guilt, and the State’s

limited emphasis on the inadmissible evidence, we hold that this additional evidence from

which the jury could infer Espinoza’s guilt “did not influence the jury, or influenced the jury

only slightly.” Barshaw, 342 S.W.3d at 93. Espinoza’s sixth issue is overruled.

                                 VI.       MEDICAL RECORDS

       Espinoza next complains that the trial court erred in overruling his “Crawford and

improper bolstering objections to B.H.[’s] and P.P.’s medical records provided by their

respective SANE nurses.”

A.     Relevant Facts

       Laura Dominguez conducted P.P.’s SANE exam. After the State attempted to

qualify her as an expert witness, Espinoza took her on voir dire, asked her to describe the

“scientific literature” or “theory” she would rely on to form her opinions, and ultimately

objected that she was not qualified to testify as an expert under Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993). The trial court carried the objection “until we

get there” and permitted her to testify.


                                              25
       Dominguez explained that during a SANE exam, patients are asked to provide a

narrative of their “medical history” (i.e., a description of the alleged abuse), which the

SANE records verbatim in the patient’s medical records. Without objection, Dominguez

read P.P.’s medical history out loud for the jury, which included allegations that Espinoza

touched her vagina with his penis over the clothes and that Espinoza also touched her

breasts over the clothes. Later, when the State asked Dominguez whether her “findings

from the examination” were consistent with P.P.’s medical history, Espinoza objected

again on Daubert grounds, the trial court directed the State to rephrase the question, and

Dominguez testified without further objection that she found nothing inconsistent between

P.P.’s exam and her medical history. After Dominguez had been excused as a witness,

the State moved to admit P.P.’s medical records into evidence because “there was a

business record affidavit filed since 2022.” Espinoza object that “[t]he witness had already

left and they didn’t put it into evidence.” The trial court overruled the objection, stating, “It

doesn’t matter. They filed it two weeks in advance, you didn’t file your objection to it,

therefore, it’s automatically admitted.”

       Genette Spear conducted B.H.’s SANE exam, and she testified immediately after

Dominguez. Espinoza did not object to her qualifications as an expert, but when the State

attempted to introduce B.H.’s medical records from the exam, he objected “under

Crawford . . . and as bolstering under 608.” (Emphasis added). He explained that his

Crawford objection was based on Dominguez’s prior testimony that portions of the report

are not “created by the SANE nurse.” The State responded that Spear would only testify

“to the part that’s her report.” The trial court overruled the objection because the medical


                                               26
records had “been on file for the requisite number of days required by law.” Afterwards,

Spear read B.H.’s medical history out loud for the jury, which included allegations that

Espinoza touched B.H.’s vagina and beasts over the clothes.

B.    Applicable Law

      Upon a proper showing, a party may introduce business records that contain

hearsay. See TEX. R. EVID. 803(6); Thomas v. State, 226 S.W.3d 697, 705 (Tex. App.—

Corpus Christi–Edinburg 2007, pet. dism’d) (explaining the predicate for the introduction

of business records under Rule 803(6) “requires proof (1) that the record was made by or

from information transmitted by a person with personal knowledge of the events or

conditions recorded, (2) that the record was made at or near the time of the events or

conditions recorded, and (3) that it was in the ordinary course of the reporting entity’s

business to make and keep such records”). “When a business receives information from

a person who is outside the business and who has no business duty to report or to report

accurately, those statements are not covered by the business records exception.” Garcia

v. State, 126 S.W.3d 921, 926 (Tex. Crim. App. 2004) (hearsay statements alleging

physical abuse not admissible under Rule 803(6)). Instead, “[t]hose statements must

independently qualify for admission under their own hearsay exception—such as

statements made for medical diagnosis or treatment.” Id. Under Rule 803(4), a hearsay

statement is admissible if the statement “(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 includes showing that a statement from a child-declarant revealing the identity of


                                           27
the perpetrator of sexual abuse is pertinent.” Taylor v. State, 268 S.W.3d 571, 591 (Tex.

Crim. App. 2008) (relevant factors include how long ago the abuse occurred and whether

there is an existing threat because the perpetrator is “a family or household member”).

C.     Analysis

       The State concedes that the trial court admitted the complainants’ medical records

on an improper basis. The State argues, instead, that the records were otherwise

admissible under Rule 803(4). See Zavala v. State, 401 S.W.3d 171, 176 (Tex. App.—

Houston [14th Dist.] 2011, pet. ref’d) (“An appellate court must uphold a trial court’s

evidentiary rulings if they are reasonably supported by the record and correct on any

applicable theory of law.” (citing Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App.

2002))). We find it unnecessary to reach the State’s alternative theory of admissibility.

       First, Espinoza’s appellate arguments concerning the admissibility of P.P.’s

medical records do not comport with his trial objections. His only objection to this evidence

was that “[t]he witness had already left and they didn’t put it into evidence.” Consequently,

this sub-issue is forfeited. See Walker, 469 S.W.3d at 210; TEX. R. APP. P. 33.1(a).

Additionally, by the time Espinoza objected to the admission of P.P.’s medical records,

Dominguez had already read P.P.’s narrative into the record without objection. Thus,

Espinoza cannot show that the admission of P.P.’s medical records was harmful. See

Tharp, 714 S.W.3d at 140.

       Turning to Espinoza’s objections to B.H.’s medical records, we fail to see how

Crawford applies in this case. Crawford concerns the Confrontation Clause and the

admissibility of an out-of-court statement made by an unavailable witness. Crawford v.


                                             28
Washington, 541 U.S. 36, 38 (2004). In this case, however, both B.H. and Spear testified

and were subject to cross-examination. See Crawford v. State, 139 S.W.3d 462, 465

(Tex. App.—Dallas 2004, pet. ref’d) (explaining that in light of Crawford v. Washington,

the Confrontation Clause “simply does not apply when the declarant was available to, and

did, testify at trial and was subject to cross-examination”). Thus, Crawford is inapplicable

here. See id.

       Likewise, Espinoza has not explained how the medical records constitute improper

bolstering. He has not cited a single rule, statute, or case in his brief to support his

contention. See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and concise

argument for the contentions made, with appropriate citations to authorities and to the

record.”). He merely concludes that the trial court’s explanation was “an improper reason

to deny [his] Crawford and improper bolstering objections.” We hold that Espinoza

forfeited this sub-issue due to inadequate briefing. See Wolfe v. State, 509 S.W.3d 325,

343 (Tex. Crim. App. 2017) (collecting cases on deficient briefing and explaining that “an

appellate court is not required to make an appellant’s arguments” on his behalf).

Espinoza’s seventh issue is overruled.

                   VII.   COMMENTING ON COMPLAINANTS’ CREDIBILITY

       In his eighth issue, Espinoza argues that the trial court improperly admitted

“testimony from [Dominguez and Spear] that directly commented on the credibility of child

witnesses B.H. and P.P., in violation of Texas Rule of Evidence 702’s prohibition on expert

testimony about witness truthfulness.” Each SANE testified that they did not find any

inconsistencies between the relevant complainant’s medical history and exam, and


                                            29
according to Espinoza, this was improper opinion testimony as to the truthfulness of P.P.

and B.H.

       Rule 702 provides that a qualified expert “may testify in the form of an opinion or

otherwise if the expert’s scientific, technical, or other specialized knowledge will help the

trier of fact to understand the evidence or to determine a fact in issue.” TEX. R. EVID. 702.

However, “expert testimony that a particular witness is truthful is inadmissible under Rule

702.” Yount v. State, 872 S.W.2d 706, 711 (Tex. Crim. App. 1993).

       We agree with the State that Espinoza has not preserved this complaint. When the

State asked Dominguez whether her findings from the exam were consistent with P.P.’s

medical history, Espinoza re-urged his objection that the State failed to establish

Dominguez as an expert under Daubert. Whether a witness qualifies as an expert in a

particular field is a different legal question than whether an otherwise qualified expert is

allowed to give a specific type of opinion. See TEX. R. APP. P. 33.1(a)(1)(A) (preserving

error for appellate review requires an objection to be made “with sufficient specificity to

make the trial court aware of the complaint, unless the specific grounds were apparent

from the context”); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011) (explaining

that an objection must be clear enough to afford the court an opportunity to address and

correct the alleged error). Because Espinoza’s argument on appeal does not comport

with his trial objection, this sub-issue is forfeited. See Tharp, 714 S.W.3d at 140.

       When the State posed the same question to Spear with respect to B.H., Espinoza

did not object on any grounds. Accordingly, this sub-issue was not preserved for review.

See Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002) (“We have consistently


                                             30
held that the failure to object in a timely and specific manner during trial forfeits complaints

about the admissibility of evidence.” (collecting cases)); TEX. R. APP. P. 33.1(a)(1).

Espinoza’s eighth issue is overruled.

                            VIII.   CUMULATIVE ERROR DOCTRINE

       Finally, Espinoza argues that even if each evidentiary error was alone harmless,

the cumulative effect of those errors was harmful because he was deprived “of a fair trial.”

       “The doctrine of cumulative error provides that the cumulative effect of several

errors can, in the aggregate, constitute reversible error, even though no single instance

of error would.” Schmidt v. State, 612 S.W.3d 359, 372 (Tex. App.—Houston [1st Dist.]

2019, pet. ref’d). The mere existence of multiple errors, however, does not warrant

reversal unless they operated in concert to undermine the fundamental fairness of the

proceedings. Estrada v. Smith, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010); Rodriguez

v. State, 553 S.W.3d 733, 752 (Tex. App.—Amarillo 2018, no pet.). Non-errors and

alleged errors not preserved for review are excluded from consideration. Schmidt, 612

S.W.3d at 372; see Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999)

(“[W]e are aware of no authority holding that non-errors may in their cumulative effect

cause error.”).

       We have overruled most of Espinoza’s alleged errors with respect to the admission

of evidence because either there was no error or the alleged error was not preserved.

Having considered the three errors we deemed harmless, we conclude Espinoza has

failed to show that such alleged cumulative error prejudiced his defense to the point that

there is a probability the result would have been different but for the three errors or that


                                              31
the errors so “fatally infected the trial that they violated the trial’s fundamental fairness.”

See Estrada, 313 S.W.3d at 311 (citation modified) (quoting United States v. Bell, 367

F.3d 452, 471 (5th Cir. 2004)); Lumsden v. State, 564 S.W.3d 858, 899 (Tex. App.—Fort

Worth 2018, pet. ref’d) (“Even considering the evidentiary errors we deemed harmless—

admitting the video of the forensic interview, admitting the testimony about Lumsden’s

tampering with government records, and sustaining the State’s ‘nonresponsive’

objections to Lumsden’s testimony—we do not believe that the cumulative effect of the

admission of this evidence requires reversal.”); see also Banda v. State, No. 13-19-

00587-CR, 2021 WL 2006325, at *23 & n.14 (Tex. App.—Corpus Christi–Edinburg May

20, 2021, pet. ref’d) (mem. op., not designated for publication) (finding no cumulative error

after assuming the “the trial court abused its discretion (1) in permitting Detective Delgado

to testify to his observation of T.B.’s demeanor during her recorded forensic interview and

(2) admitting J.M.’s testimony regarding Banda’s pornography consumption”); Seery v.

State, No. 12-11-00095-CR, 2013 WL 683327, at *16 (Tex. App.—Tyler Feb. 21, 2013,

pet. ref’d) (mem. op., not designated for publication) (finding no cumulative error where

the court “identified two instances of error—admission of Appellant’s military record and

[the complainant’s] hearsay statements to her mother”). Espinoza has not shown the

evidentiary errors “synergistically achieve the critical mass necessary to cast a shadow

upon the integrity of the verdict.” Linney v. State, 413 S.W.3d 766, 767 (Tex. Crim. App.

2013) (Cochran, J., concurring) (explaining the doctrine of cumulative error). Espinoza’s

ninth issue is overruled.




                                              32
                                 IX.    CONCLUSION

      Espinoza’s judgment of conviction is affirmed.

                                                       JENNY CRON
                                                       Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed on the
23rd day of April, 2026.




                                          33