author: CHARLES W. SEYMORE, Justice.

text:
    William Richard CHAPMAN, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 14-02-00917-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 21, 2004.

      Winston E. Cochran, Jr., Houston, for appellant.
    Joel H. Bennett, Galveston, for appellee.
    Panel consists of Justices FOWLER, EDELMAN, and SEYMORE.
   SUBSTITUTE OPINION

CHARLES W. SEYMORE, Justice.

Appellee’s Motion for Rehearing is overruled. Our original opinion issued on August 17, 2004 is withdrawn, and we issue this substitute opinion.

Appellant, William Richard Chapman, Jr., was charged with aggravated sexual assault of K.M.F., his six-year-old stepdaughter. In appellant’s first trial, the court sua sponte concluded proceedings by announcing a mistrial because the jury was deadlocked. In appellant’s second trial, the jury found him guilty and assessed punishment at eighty-eight years’ confinement in the Texas Department of Criminal Justice, Institutional Division. In four issues, appellant contends the trial court erred by (1) ordering a mistrial of his first trial, (2) admitting improper outcry testimony regarding the charged offense during the guilt/innocence phase of his second trial, (3) allowing a witness to interpret another person’s communication concerning an extraneous offense during the punishment phase of his second trial, and (4) admitting improper outcry testimony regarding the extraneous offense during the punishment phase. We affirm the guilty verdict but reverse and remand for a new trial on punishment.

I. Mistrial

In his first issue, appellant contends the trial court erred in sua sponte ordering a mistrial after the jury deliberated from 6:00 p.m. until midnight on a Friday night without reaching a verdict. A trial court “may in its discretion discharge [the jury] where it has been kept together for such time as to render it altogether improbable that it can agree.” Tex.Code Crim. Proc. Ann. art. 36.31 (Vernon 1981); see Ellis v. State, 99 S.W.3d 783, 787 (Tex.App.-Houston [1st Dist.] 2003, pet. ref d) (recognizing the length of time the jury may be held for deliberation rests in the trial court’s discretion). Whether the trial court abused its discretion in declaring a mistrial is determined by the amount of time the jury deliberates, considered in light of the nature of the ease and evidence. Beeman v. State, 533 S.W.2d 799, 800-01 (Tex.Crim.App.1976); Nelson v. State, 813 S.W.2d 651, 653 (Tex.App.-Houston [14th Dist.] 1991, no pet.).

However, here, appellant does not challenge the length of time the jury deliberated. Instead, he merely complains that the jury deliberated at night. He asserts that it was highly unusual and unfair for the trial court to compel deliberations at night. He also suggests the nighttime deliberations caused the deadlock because the jurors were probably exhausted but might have reached a verdict if they had been allowed to continue deliberating on another day. However, we have found no authority prohibiting deliberations at night. Further, we have found no authority requiring the trial court to consider the time of day that the jury deliberated when deciding whether to order a mistrial. Finally, there is no indication the nighttime deliberations caused the deadlock. To the contrary, as the night progressed, the jury sent various requests to the trial court indicating it was still considering evidence despite the late hour. It was only after the jury twice said it was deadlocked “8-4” that the trial court ordered the mistrial. Accordingly, the trial court did not abuse its discretion in ordering the mistrial. Appellant’s first issue is overruled.

II. OutcRY Testimony REGARDING CHARGED Offense

In his second issue, appellant contends the trial court erred in admitting outcry testimony from Clarence Grayson, KM.F.’s grandfather, and Raytwan Gray-son, KM.F.’s father, regarding the charged offense in the guilt/innocence phase of his second trial. Article 38.072 of the Texas Code of Criminal Procedure created an “outcry exception” to the hearsay rule in prosecutions for sexual offenses committed against a child twelve years of age or younger. See Tex.Code Crim. Proc. Ann. art. 38.072 (Vernon Supp.2004-05). Article 38.072 provides that outcry testimony from the first adult (other than the defendant) to whom the child made statements describing the alleged offense will not be inadmissible because of the hearsay rule if certain requisites are met. Id. The trial court has broad discretion to determine which of several witnesses is an outcry witness, and we will not disturb its decision absent a clear abuse of discretion. See Garcia v. State, 792 S.W.2d 88, 92 (Tex.Crim.App.1990); Hayden v. State, 928 S.W.2d 229, 231 (Tex.App.-Houston [14th Dist.] 1996, pet. refd). An abuse of discretion will not be found unless the trial court’s decision is outside the zone of reasonable disagreement. See Weatherred v. State, 15 S.W.Sd 540, 542 (Tex.Crim.App. 2000); Tear v. State, 74 S.W.3d 555, 558 (Tex.App.-Dallas 2002, pet. ref'd).

A. ClaRence’s Testimony

First, appellant contends that the trial court abused its discretion by admitting outcry testimony from Clarence Gray-son. Appellant asserts the proper outcry witness was Katina Frank, K.M.F.’s mother, because she was the first person to whom K.M.F. made statements about the offense. We agree.

Before appellant’s second trial, the trial court held a hearing at which it considered testimony from Katina and Clarence to determine who was the proper outcry witness. Katina testified that K.M.F. told her about the offense “[p]robably the end of March, beginning of April, but no later than May” of 2001. D.F., K.M.F.’s brother, first told Katina that appellant had been “freaking” K.M.F. Katina then asked K.M.F. about this allegation. K.M.F. said that appellant called her into the “back room” of their home, made her lie on a couch, put lotion on his “private part,” and tried to “stick” his “private part” in her “behind.” To Katina’s knowledge, she was the first adult to whom K.M.F. reported the offense.

Clarence testified that K.M.F. told him about the offense between April 3 and April 5, 2001. He and Raytwan had taken K.M.F. and D.F. to Kansas City for spring break. During the trip, D.F. repeatedly urged K.M.F. to tell Clarence “what happened.” When Clarence asked what they were talking about, D.F. said that appellant had been “freaking” K.M.F. Clarence asked K.M.F. if that was true. She replied, “He’s been freaking on me and my sister.” Clarence took K.M.F. aside and asked, “Did he uses [sic] his pee pee? The proper word is penis.” K.M.F. replied, “He used his penis.” Most significantly, Clarence asked why K.M.F. did not tell her mother, and she replied, “I did.” Clarence asked when she told her mother. K.M.F. responded either “awhile back” or a “few days ago.”

Based on this testimony, the trial court allowed Clarence to be designated as the outcry witness because he could recall a date certain that K.M.F. told him about the offense, while Katina could only say that K.M.F. told her about the offense between March and May of 2001. However, article 38.072 contains no requirement that a witness provide a date certain on which the child reported the offense to qualify as the outcry witness. See Tex. Code CRIM. PROC. Ann. art. 38.072. Rather, article 38.072 allows testimony from the first adult to whom the child made statements about the offense. See id. art. 38.072 § 2(a). Although Katina could not provide a date certain, Clarence’s testimony established that Katina was the first adult to whom K.M.F. made statements about the offense. Therefore, the trial court’s determination that Clarence, not Katina, was the proper outcry witness was outside the zone of reasonable disagreement. See Weatherred, 15 S.W.3d at 542; Tear, 74 S.W.3d at 558. Accordingly, the trial court abused it discretion in admitting Clarence’s outcry testimony.

B. HaRm Analysis

Having found that the trial court abused its discretion in admitting Clarence’s outcry testimony, we must determine whether the error is reversible. See Tex.R.App. P. 44.2(b). The admission of inadmissible hearsay constitutes nonconsti-tutional error, and it will be considered harmless if we, after examining the record as a whole, are reasonably assured that the error did not influence the jury verdict or had but a slight effect. See id.; Garcia v. State, 126 S.W.3d 921, 927 (Tex.Crim.App.2004); Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998); Drew v. State, 76 S.W.3d 436, 459 (Tex.App.-Houston [14th Dist.] 2002, pet. refd). Likewise, improper admission of evidence is not reversible error if the same or similar evidence is admitted without objection at another point in the trial. See Mayes v. State, 816 S.W.2d 79, 88 (Tex.Crim.App. 1991); Brooks v. State, 990 S.W.2d 278, 287 (Tex.Crim.App.1999). After examining the record, we are reasonably assured that the improper admission of Clarence’s testimony did not influence the jury verdict, or had but a slight effect, because the same or similar evidence was admitted without objection elsewhere at trial.

First, K.M.F. testified without objection regarding the offense. In fact, her account was more detailed than Clarence’s testimony. K.M.F. testified that appellant called her into their living room. Pursuant to his instruction, K.M.F. lay face down on the couch. Appellant removed his clothes and pulled down K.M.F.’s shorts. He also held her hands behind her back. He then put his “front part” inside her “bottom part” twice, and it “hurted.” However, K.M.F. could not say anything because appellant had placed a sock in her mouth.

Further, Dr. James Lukefahr, a pediatrician at the University of Texas Medical Branch, testified without objection from the report on KM.F.’s medical examination, and the report was admitted into evidence. The report states, “History per CPS: During Spring Break of 2001, Pt. disclosed to her father and paternal grandfather that her stepfather had been sexually abusing her. The abuse consisted of her stepfather putting ‘lotion’ on pt’s ‘butt’ and penetrating her anus with his penis. This occurred on more than one occasion.”

Although Clarence’s outcry testimony was cumulative of other evidence, appellant asserts it improperly influenced the jury verdict because Clarence was the most credible witness at trial and showed by his actions that he believed K.M.F when her testimony was otherwise suspect. However, even if Clarence’s testimony regarding the content of KM.F.’s statement had been properly excluded, the jury could still have concluded that Clarence believed K.M.F. because he immediately called Raytwan and made sure appropriate authorities were contacted in reaction to K.M.F.’s statement. Further, Dr. Luke-fahr’s testimony and report supported KM.F.’s account of the offense regardless of Clarence’s testimony. Therefore, the trial court’s error in admitting Clarence’s outcry testimony was harmless. See Duncan v. State, 95 S.W.3d 669, 672 (Tex.App.Houston [1st Dist.] 2002, pet. refd) (holding improper admission of outcry testimony was harmless where similar testimony was admitted through complainant, pediatrician, and medical records); Poole v. State, 974 S.W.2d 892, 899 (Tex.App.-Austin 1998, pet. ref'd) (holding any error in admitting mother’s outcry testimony was cured by admission of the complainants’ testimony).

C. Raytwan’s Testimony

Appellant also contends that the trial court abused its discretion by admitting outcry testimony from Raytwan Gray-son because Katina was the proper outcry witness. However, Raytwan did not give outcry testimony because he did not repeat K.M.F.’s statements about the offense. He testified only that he received “alarming news” from K.M.F., she was upset and crying when she told him the “news,” and he called Katina, a child abuse hotline, and the police in response. Accordingly, the trial court did not abuse its discretion in admitting Raytwan’s testimony. See Brown v. State, 756 S.W.2d 793, 797 (Tex.App.-Houston [14th Dist.] 1988, pet. refd) (holding aunt’s testimony that she was shocked by what child told her was not inadmissible outcry because aunt did not describe abuse); Turner v. State, 721 S.W.2d 909, 911 (Tex.App.-Houston [1st Dist.] 1986, pet. ref'd, untimely filed) (holding mother’s testimony that she called the police after child told her about the “situation” was not inadmissible outcry because she did not repeat child’s description of the abuse). Appellant’s second issue is overruled.

III. Outcry Testimony Regarding Extraneous Offense

In his fourth issue, appellant contends the trial court erred by admitting improper outcry testimony from Katina regarding an extraneous offense during the punishment phase of appellant’s second trial.

A. Katina’s Testimony

The trial court permitted Katina to testify regarding appellant’s alleged sexual abuse of KM.F.’s sister, K.F. At the time of trial, K.F. was eleven-years-old. She has cerebral palsy, and except for a few words, she does not speak. Instead, she communicates by nodding and shaking her head in response to “yes” or “no” questions and making other physical gestures. Before the punishment phase, the trial court held a hearing to determine, in part, the admissibility of Katina’s proffered outcry testimony. The trial court ruled Katina could give limited outcry testimony regarding KF.’s nodding her head in response to certain questions. In front of the jury, Katina testified that she asked K.F. if appellant did “anything to her in a sexual way,” and K.F. nodded “yes.”

Appellant contends Katina’s testimony was inadmissible because KF.’s “statement” regarding the “offense” was not sufficiently specific to satisfy the outcry exception. We agree. The outcry exception applies “only to statements that describe the alleged offense.” Tex.Code Crim. Proc. Ann. art. 38.072 § 2(a) (emphasis added). To constitute admissible outcry, the statement “must be more than words which give a general allusion that something in the area of child abuse was going on.” Garcia, 792 S.W.2d at 91; see Hayden, 928 S.W.2d at 231. Rather, the statement must describe the offense in some discernible manner. Garcia, 792 S.W.2d at 91; Hayden, 928 S.W.2d at 231.

Katina’s testimony that K.F. nodded “yes” when asked if appellant did “anything to her in a sexual way” is nothing more than a general allusion to abuse. See Garcia, 792 S.W.2d at 91; Hayden, 928 S.W.2d at 231. The term “sexual way” could have vastly different meanings to different persons. See Garcia, 792 S.W.2d at 91 (recognizing in the context of outcry statements, “generalities can be misleading”). The term does not necessarily even encompass a criminal offense. It is certainly unclear what Katina meant by “sexual way.” The lack of specificity is exacerbated by the fact that K.F. is a child, has an I.Q. in the 60’s, and was found incompetent to testify. Because the meaning of “sexual way” is unclear to us, we doubt K.F. understood what she was answering when she nodded “yes” to Katina’s question. We recognize outcry statements may be admissible despite the unsophisticated language used as long as the offense was described in some discernible manner. See, e.g., Rodriguez v. State, 997 S.W.2d 640, 642 (Tex.App.-Corpus Christi 1999, no pet.) (finding social worker’s outcry testimony was proper where child told social worker that defendant put his “private part” into her “private part”); Rainey v. State, 763 S.W.2d 470, 471-73 (Tex.App.Houston [14th Dist.] 1988, no pet.) (holding mother was proper outcry witness where child told mother that defendant “put his thing in [her]”). However, here, no offense was described at all, much less in any discernible manner.

Accordingly, K.F.’s “statement” did not satisfy the outcry exception, and the trial court abused its discretion by admitting Katina’s outcry testimony. See Smith v. State, 131 S.W.3d 928, 931 (Tex.App.-East-land 2004, pet. ref'd) (affirming that child’s statement to his mother that “[defendant] had been performing oral sex” on him was nothing more than a general allusion to sexual abuse because child did not relay any specific details about the offense); Bradshaw v. State, 65 S.W.3d 232, 239-40 (Tex.App.-Waco 2001, no pet.) (determining mother was not outcry witness where child told mother defendant “had been touching her” but offered no details; however, aunt was outcry witness because she asked child where the touching had occurred, and child pointed to the area between her legs and said defendant put his finger inside her); see also Bui v. State, No. 05-96-00901-CR, 1998 WL 420303, at *3-4 (Tex.App.-Dallas July 28, 1998, pet. refd) (not designated for publication) (finding no abuse of discretion in trial court’s determining that child’s statement to aunt that defendant “had sex with me” was general allusion to abuse; however, child’s statement to cousin that appellant took her in the bedroom, took her clothes off, put his “private” into her “private,” and a few minutes later he took it out and some “white stuff’ came out was proper outcry).

B. Harm Analysis

Having found that the trial court abused its discretion by admitting Katina’s outcry testimony, we must determine whether the error is reversible. See Tex.R.App. P. 44.2(b). After examining the record as a whole, we are not reasonably assured the error did not influence the jury verdict at the punishment phase or had but a slight effect. See id.; Garcia, 126 S.W.3d at 927; Johnson, 967 S.W.2d at 417; Drew, 76 S.W.3d at 459.

Katina’s testimony was not cumulative of other evidence. The trial court precluded any mention of sexual abuse of K.F. during the guilt/innocence phase. The State’s only other witness at the punishment phase was Joy Blackmon, a physician’s assistant at the University of Texas Medical Branch, who examined K.F. Blackmon testified that KF.’s genital examination revealed “generalized narrowing” of the hymen which is “consistent with past penetrating injury.” However, pursuant to appellant’s hearsay objection, Blackmon was not allowed to testify regarding the identity of the abuser, and her medical report was redacted to the extent it identified appellant as the abuser. As a result, Katina’s testimony was the only evidence that appellant, if anyone, sexually abused K.F. Therefore, if Katina’s testimony had been properly excluded, the jury could not have concluded beyond a reasonable doubt that appellant sexually abused K.F. In contrast, because Katina’s testimony was admitted, the jury may have considered it together with the medical evidence and concluded beyond a reasonable doubt that appellant sexually abused K.F. See Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App.2002) (recognizing appellate court conducting harm analysis should consider, among other items, how the error might have been considered in connection with other evidence).

Any such conclusion may have influenced the jury in assessing appellant’s punishment. The State’s main purpose during the punishment phase was to prove appellant also abused K.F., and, thus, maximize his sentence. The State emphasized this abuse during closing argument:

[Wjhat comes to mind when I think about [appellant], a program I saw on Discovery Channel where you have lions going after gazelles. And as much respect as I have for lions, kings of the jungle, I would have to compare them to the sex offender. Where do the lions go after a prey? Do they go after the biggest, fastest possible gazelle? No. They go after the weak, the smaller one, the one left behind, the easy prey. And that’s what he did. He went after a six year-old [K.M.F.], analy raped her, and then went after her sister [K.F.] and vaginally raped her.

The State further argued, “You are the ones to determine what happens to [appellant], a sex offender. Two victims. Two of his step-children ... He was raping them.” See Motilla, 78 S.W.3d at 355-56 (recognizing appellate court conducting harm analysis may consider, among other items, closing arguments and whether the State emphasized error).

The range of punishment for the charged offense was five years to ninety-nine years or life. See Tex. Pen.Code ANN. § 12.32 (Vernon 2003). Appellant’s sentence of eighty-eight years was near the maximum. While the jury may have considered a harsh sentence appropriate for aggravated sexual assault of K.M.F., we cannot say the assertion that appellant is a multiple sex offender who also assaulted a child with cerebral palsy did not influence the sentence. Therefore, the error in admitting Katina’s outcry testimony was harmful. See James v. State, 47 S.W.3d 710, 713-15 (Tex.App.-Texarkana 2001, no pet.) (holding that in defendant’s trial for aggravated sexual assault of child, improper admission of evidence he engaged in sexual acts with other persons when they were children likely had substantial and injurious effect on jury’s punishment verdict because it showed continuing pattern of child abuse by defendant over a period of decades); see also Aleman v. State, 49 S.W.3d 92, 96 (Tex.App.-Beaumont 2001, no pet.) (finding no fair assurance improper admission of DWI convictions did not influence jury’s punishment verdict; although convictions were not the only evidence admitted in punishment phase, prosecutor relied on them to urge maximum sentence, and jury imposed maximum sentence). Appellant’s fourth issue is sustained.

Accordingly, we affirm the guilty verdict but reverse appellant’s sentence and remand for a new trial on punishment.

      . The State asserts that appellant waived this complaint by failing to object to the mistrial. See Tex.R.App. P. 33.1(a). However, there is some authority that as long as a defendant does not request or consent to a mistrial based on a deadlocked jury, he does not waive a complaint about the mistrial by failing to object. See Ex parte Templin, 945 S.W.2d 254, 257 n. 1 (Tex.App.-San Antonio 1997, pet. ref'd) (citing Bowles v. State, 606 S.W.2d 875, 876 (Tex.Crim.App. [Panel Op.] 1980); Davis v. State, 144 Tex.Crim. 474, 164 S.W.2d 686, 689 (1942)). Although appellant did not object, there is no indication he requested or consented to the mistrial. Therefore, we will consider his complaint.

      . The statement is admissible if (1) on or before the 14th day before the date the proceeding begins, the party intending to offer the statement notifies the adverse party of its intention to do so, provides the adverse party with the name of the witness through whom it intends to offer the statement, and provides the adverse party with a written summary of the statement; (2) the trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement; and (3) the child testifies or is available to testify at the proceeding in court or in any other manner provided by law. See Tex.Code Crim. Proc. Ann. art. 38.072 § 2(b).

      . With the parties’ consent, the trial court considered the testimony from the outcry hearing before appellant's first trial.

      . The State alleged the offense occurred on or about October 1, 2000.

      . About a week later, K.M.F. added that appellant had put a sock in her mouth.

      . Clarence understood freaking to mean sexual intercourse.

      . The trial court also stressed that the State "chose” Clarence as the outcry witness. Although the State is required to designate an outcry witness as a prerequisite to offering the testimony, the designation does not confer the status of outcry witness. Regardless of the designation, the proffered outcry witness must be the first adult to whom the child made a statement about the offense. See Tex.Code Crim. Proc. Ann. art. 38.072 § 2(a)(2).

      . Citing Mosley v. State, 960 S.W.2d 200, 204 (Tex.App.-Corpus Christi 1997, no pet.), appellant contends we should review the trial court’s error under the harm analysis applicable to constitutional errors. See Tex.R.App. P. 44.2(a). However, other courts have applied the harm analysis applicable to non-constitutional errors. See Duncan v. State, 95 S.W.3d 669, 671-72 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (rejecting application of the constitutional error analysis to improper admission of outcry testimony); Thomas v. State, 1 S.W.3d 138, 142 (Tex.App.-Texarkana 1999, pet. ref'd) (same). Because the improper admission of hearsay is non-constitutional error, see Garcia, 126 S.W.3d at 927, we also will use the harm analysis applicable to non-constitutional errors. See Debow v. State, No. 14-00-00370-CR, 2001 WL 619178, at *1-2 (Tex.App.-Houston [14th Dist.] June 7, 2001, pet. ref'd) (not designated for publication).

      .Clarence’s outcry testimony in front of the jury was essentially the same as his testimony during the outcry hearing. In sum, he testified that K.M.F. told him appellant had sexual intercourse with her using his penis, but she did not provide any more details about the offense and did not tell him what part of her body appellant contacted with his penis.

      . Because they have the same initials, we will refer to the sister as K.F., while the complainant is K.M.F.

      . At the hearing, Katina testified she had previously asked K.F. if appellant did anything to her in a sexual manner, and K.F. nodded "yes.” When Katina asked what appellant did, K.F. grabbed her vagina and pointed to her "backside.” Based on its observations of K.F., the trial court concluded she was incapable of grabbing and pointing to the extent described, so Katina’s testimony regarding those gestures was not credible. Therefore, the trial court allowed Katina to testify regarding K.F.’s nodding her head in response to Katina's questions, but not K.F.’s other gestures.

      . The State contends appellant did not preserve error on this complaint because he did not object when Katina testified in front of the juiy. However, appellant objected to Katina's testimony at a hearing outside the jury's presence; therefore, he was not required to object again when Katina testified before the jury. See TexR. Evid 103(a)(1); Geuder v. State, 115 S.W.3d 11, 13-14 (Tex.Crim.App.2003); Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App.2003); Robinson v. State, 985 S.W.2d 584, 586 (Tex.App.-Texarkana 1998, pet. ref’d). The State also asserts that appellant did not preserve error because his objection at the hearing outside the jury’s presence did not match his complaint on appeal. However, appellant's "hearsay” objection was sufficient to preserve his complaint that Katina's testimony did not satisfy the outcry exception. See Long v. State, 800 S.W.2d 545, 546-48 (Tex.Crim.App.1990); see also Lankston v. State, 827 S.W.2d 907, 911 (Tex.Crim. App.1992); Beckley v. State, 827 S.W.2d 74, 78 (Tex.App.-Fort Worth 1992, no pet.). Nonetheless, appellant did sufficiently object on the same grounds raised on appeal; in addition to his hearsay objection, appellant objected that Katina’s testimony was not proper outcry because she could not get any meaningful information about "where or when or exactly what.” See Ex parte Little, 887 S.W.2d 62, 65 (Tex.Crim.App.1994) (stating objection may be phrased in any manner which sufficiently apprises trial court and opposing counsel of nature of the complaint). Therefore, we will consider his complaint.

      .We note the outcry exception does not ordinarily apply to hearsay statements regarding an extraneous offense. By its own terms, article 38.072 applies "only to statements that describe the alleged offense.” Tex.Code Crim. Proc. Ann. art. 38.072 § 2(a) (emphasis added); see Beckley v. State, 827 S.W.2d at 78 (recognizing outcry exception statute does not extend to a child’s outcry respecting an extraneous offense); see also Howard v. State, No. 14-99-01004-CR, 2003 WL 21195473, at *3 (Tex.App.-Houston [14th Dist.] May 22, 2003, pet ref'd) (not designated for publication) (same). However, on appeal, appellant does not challenge the admissibility of outcry testimony regarding an extraneous offense in general. Instead, he asserts this particular outcry testimony was inadmissible based on its content.

      . In its notice of intent to introduce extraneous offenses, the State asserted it intended to introduce evidence of "aggravated sexual assault” of K.F. The term “sexual way” is too general to describe any prohibited conduct, much less aggravated sexual assault. See Tex Pen.Code Ann. § 22.021 (Vernon Supp.2004-05) (requiring actor’s mouth, anus, or sexual organ to contact or penetrate the mouth, anus, or sexual organ, of the child, or vice-versa, to constitute aggravated sexual assault).

      . Appellant introduced evidence that some experts now consider Blackmon's finding, traditionally associated with physical abuse, to be a normal variation in girls who have not been sexually abused. Regardless of any conflicting medical evidence, Katina's testimony was the only evidence that appellant may have sexually abused K.F.

      . The jury was properly instructed that it could not consider evidence of an extraneous offense in assessing punishment unless it found beyond a reasonable doubt that appellant committed the offense. See Tex.Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon Supp.2004-05); Fields v. State, 1 S.W.3d 687, 688 (Tex.Crim.App.1999).

      . Further, the generality of Katina’s testimony allowed the jury to interpret the meaning of "sexual way.” Considering the medical evidence, the jury may have given "sexual way” its most drastic meaning as urged by the State and concluded that appellant "vaginally raped” K.F.

      . Although the State introduced appellant's past convictions for forgery of a commercial instrument, theft, and public intoxication, none of these offenses rose to the level of a sexual offense against a child.

      . During deliberations, the jury asked to see K.F.’s medical report indicating it was considering the alleged abuse of K.F. in determining punishment.

      . Cf. Brooks v. State, 76 S.W.3d 426, 435-36 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (holding State's failure to give notice of intent to use unadjudicated extraneous offenses in punishment phase of defendant’s trial for cocaine possession was harmless; trial court stated its punishment determination would not be based on any unadjudicated offense, defendant had previous final conviction for cocaine possession, and trial court imposed sentence lower than State requested.); Hicks v. State, 901 S.W.2d 614, 617-18 (Tex.App.San Antonio 1995, pet. ref'd) (finding remarks by witness and trial judge regarding extraneous offenses did not prejudicially influence jury’s decision to assess eighty years’ sentence for aggravated sexual assault where it heard evidence of defendant’s previous convictions for aggravated sexual assault, robbery, statutory rape, and burglary).

      .In his third issue, appellant also contends Katina's testimony regarding the extraneous offense was improper because she was allowed to interpret K.F.’s gestures. Based on our disposition of appellant’s fourth issue, we need not address his third issue.


source: Caselaw Access Project

author: BEA ANN SMITH, Justice.

license: Public Domain

text:
    In re Ruby V. LUDWIG & In re Joy Higdon.
    No. 03-04-00464-CV, 03-04-00466-CV.
    Court of Appeals of Texas, Austin.
    Oct. 21, 2004.
    Rehearing Overruled Nov. 18, 2004.

      John J. Hindera, Hindera Law Firm, Austin, for Ruby V. Ludwig.
    Mary Farrington, Carl Bryan Case, Jr., Asst. Dist. Attys., Austin, for Texas Department of Protective and Regulatory Services.
    Robert Galvin, Austin, for Joy Higdon.
    Christina Menning-Utkov, Austin, for Ad Litem.
    Before Justices KIDD, B.A. SMITH and PURYEAR.
   OPINION

BEA ANN SMITH, Justice.

Relator Joy Higdon is the mother of two minor children K.H. and Z.H. The Texas Department of Family and Protective Services (Department) recently obtained a judgment in a suit affecting the parent-child relationship (SAPCR) that terminates Higdon’s parental rights and appoints the Department as sole managing conservator of the children. Relator Ruby Y. Ludwig is the children’s great-grandmother who intervened in the suit and unsuccessfully sought to be named the children’s sole managing conservator.

Relators filed petitions for a writ of mandamus with this Court requesting that we command the trial court to (1) vacate its order terminating Higdon’s parent-child relationship with her children K.H. and Z.H. and appointing the Department as sole managing conservator of the children and (2) dismiss the Department’s SAPCR. Relators contend that the trial court did not render a final order within the mandatory time frame set forth in section 263.401 of the family code, and therefore the trial court had no discretion but to dismiss the Department’s SAPCR. Because we find that both relators made a timely motion that brought the statutory deadline to the attention of the court and the trial court did not render a final order prior to that deadline, we conditionally grant both relators’ petitions.

FACTUAL AND PROCEDURAL BACKGROUND

On January 23, 2003, the trial court entered an ex parte order finding that there was “an immediate danger to the Children, or the Children have been the victim of neglect or sexual abuse and that continuation in the home would be contrary to the Children’s welfare.” See Tex. Fam.Code Ann. § 262.102 (West Supp. 2005). The order gave temporary managing conservatorship to the Department and set a full adversarial hearing for February 3, 2003. See id. A docket entry from the February 3 hearing notes “TMC to CPS” and placement of the children with their great-grandmother, Ludwig. A written order was signed on February 5, 2003 that did not mention the placement of the children or temporary managing conservator-ship but did grant Higdon visitation with the children and ordered Higdon to follow a number of requirements.

Periodic healings were held in the case throughout the year while the children remained with Ludwig. On January 23, 2004, the trial court held a permanency hearing. An order signed January 26, 2004, recognized that the dismissal date for the Department’s SAPCR was January 26, 2004, but extended the deadline until July 24, 2004, in the best interests of the children. In February 2004 Ludwig filed a petition in intervention seeking sole managing conservatorship of the children. In March, the Department filed a notice of settings for the trial on the merits for May 17 or 24, or June 21 or 28.

The jury trial on the merits did not actually begin until Monday, July 19, 2004. The Department rested its case-in-chief on Friday, July 23. Trial resumed on Tuesday, July 27, and the jury returned a verdict the following day. On July 28, 2004, the trial court entered a judgment on the verdict terminating Higdon’s parent-child relationship and designating the Department as sole managing conservator of the children.

Relators both filed motions to dismiss during the trial on Thursday, July 22. These motions informed the trial court that it must dismiss the Department’s SAPCR if a final order was not rendered on or before the dismissal date of July 24, 2004. Relators brought these motions to the trial court’s attention on July 24, before the Department rested its case-in-chief. Relators again sought dismissal of the suit after the jury returned its verdict on July 28. The trial court denied the motions and rendered judgment on the verdict.

DISCUSSION

Mandamus relief is appropriate if a trial court fails to dismiss a SAPCR when an order has not been rendered within the statutory deadline. See In re Ruiz, 16 S.W.3d 921, 926 (Tex.App. — Waco 2000, orig. proceeding) (appeal frequently inadequate to protect right of parents and children in child custody cases because justice demands speedy resolution); In re Bishop, 8 S.W.3d 412, 416 (Tex.App.—Waco 1999, orig. proceeding); In re Neal, 4 S.W.3d 443, 447 (Tex.App.—Houston [1st Dist.] 1999, orig. proceeding). Dismissal can be waived if a party does not properly object to the rendering of an order outside of the deadline. See Tex. Fam.Code Ann. § 263.402(b) (West 2002). Our resolution of this mandamus proceeding centers on whether relators filed a timely motion to dismiss or motion to render a final order so as to avoid waiver of the statutory deadline for a final order in a termination suit. See id.

When considering cases involving the termination of the parent-child relationship, we must be sensitive to the fundamental constitutional rights involved. The Texas Supreme Court has described the bond between parent and child to be a constitutionally protected “natural right” far more precious than the right to property. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985); Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.1976); see Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Therefore, we strictly construe involuntary termination statutes in favor of the parent. Holick, 685 S.W.2d at 20; Heard v. Bauman, 443 S.W.2d 715, 719 (Tex.1969). Although substantial, the protected interest in the parent-child relationship does not override all procedural restrictions. See In re B.L.D., 113 S.W.3d 340, 354 (Tex.2003) (due process does not require review of unpreserved error in parental rights termination cases).

The time limitations found in chapter 263 of the family code were established by the legislature in order to carry out the 1996 recommendation of the Governor’s Committee to Promote Adoption that parental rights be terminated or families reunified within twelve months. See In re Bishop, 8 S.W.3d at 417. The statute requires dismissal of a termination suit if a final order has not been rendered on or before the first Monday after the one-year anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservator of a child. Tex. Fam.Code Ann. § 263.401 (West 2002). The trial court may extend the deadline for dismissal for up to 180 days, and must dismiss the suit if a final order is not rendered on or before the new dismissal date; it may not extend the deadline any more. Id. Amendments to the statute enacted in 2001 eliminated jurisdictional language in the deadline provision and created section 263.402’s waiver provision. See In re J.B.W., 99 S.W.3d 218, 224 (Tex.App.—Fort Worth 2003, pet. denied). Section 263.402 prohibits the parties in a termination suit from extending the dismissal deadline by agreement, but provides that the deadline can be waived:

A party to a suit under this chapter who fails to make a timely motion to dismiss or to make a motion requesting the court to render a final order before the deadline for dismissal under this sub-chapter waives the right to object to the court’s failure to dismiss the suit. A motion to dismiss under this subsection is timely if the motion is made before the department has introduced all of the department’s evidence, other than rebuttal evidence.

Tex. Fam.Code Ann. § 263.402(b) (West 2002). In this case, the trial court overruled relators’ motions to dismiss based on the Department’s contention that relators had waived the right to object under section 263.402(b).

The Department explains that relators waived their right to object to the rendering of an order beyond the dismissal deadline because relators’ motions were filed prior to the dismissal deadline, when they were not yet timely, and were reurged after the Department rested its case-in-chief, when they were no longer timely. Essentially, the Department seeks an interpretation of the statute which would only permit a timely motion to dismiss to be filed during a window of time in which the dismissal deadline has passed, but the Department has not yet completed its case-in-chief. So long as the department completed its case-in-chief prior to the dismissal deadline, it would be impossible to enforce section 263.401’s requirement that a final order be rendered on or before the dismissal deadline. See id. § 263.401. We do not find that this interpretation reflects the plain language of sections 263.401 and 263.402, nor would it be consistent with our obligation to strictly construe the statute in favor of parents. See Holick, 685 S.W.2d at 20; Heard, 443 S.W.2d at 719.

Section 263.402(b) defines a timely motion to dismiss as one that is filed “before the department has introduced all of department’s evidence ... at the trial on the merits.” Tex. Fam.Code Ann. § 263.402(b). Requiring a motion to dismiss to be filed before the Department concludes its case-in-chief is consistent with other provisions in the statute that give notice to the Department and the trial court that the case will be dismissed if it continues past the deadline. The statute requires the trial court to “set a final hearing ... on a date that allows the court to render a final order before the date for dismissal of the suit under this chapter.” Id. § 263.304 (emphasis added). The 180 day extension provision in section 263.401 also states that the court shall render an order that “sets a final hearing on a date that allows the court to render a final order before the required date for dismissal of the suit under this subsection.” Id. § 263.401(b)(3) (emphasis added). These provisions, which caution trial courts to set a hearing well in advance of the dismissal date and require giving notice of an impending dismissal deadline before the Department rests its case-in-chief, evidence the legislature’s intent that suits be dismissed even during the trial on the merits if no final order is rendered before the dismissal date.

The Department’s interpretation of the statute is also inconsistent with the plain language of section 263.401’s dismissal provision. That statute requires dismissal if a final' order is not rendered within the statutory time limitation. The Department’s interpretation would limit dismissal to cases where the Department failed to complete its case-in-chief within that time frame. Section 263.401, however, makes dismissal contingent on the date the trial court renders a final order. We will not ignore the clear language of the statute to require only that the Department rests its case-in-chief before the deadline.

Furthermore, there is no mention of a requirement that a timely motion to dismiss be filed after the expiration of the dismissal deadline, and we will not construe the statute to include a procedural trap for unwary parents. See Holick, 685 S.W.2d at 20.

The Department forcefully argues it should only be required to complete its case-in-chief before the deadline because that is the only aspect of a trial under its control. The trial court also reasonably questioned the wisdom of an arbitrary deadline for the dismissal of a termination suit when a trial is well under way or a jury has reached a verdict. However, these issues need to be brought to the attention of the legislature; this court cannot avoid the plain language of the statute as it is now written.

The Department alternatively contends that the true dismissal date was not until August 2004 because the Department was not actually appointed temporary managing conservator until August 11, 2003. Although there is an order dated August 16, 2003 which appoints the Department temporary managing conservator, the statute begins the one-year time limit when a “temporary order appointing the department as temporary managing conservator” is signed. Id. § 263.401(a) (emphasis added). The trial court issued a temporary order appointing the Department temporary managing conservator of the children on January 23, 2002, pursuant to its authority under section 262.102 of the family code. Therefore, the one-year dismissal deadline was correctly set from that date.

CONCLUSION

The relators made timely motions to dismiss which preserved their right to object to the trial court’s rendering of a final order after the dismissal date for this termination proceeding. Because the trial court was required to dismiss the Department’s SAPCR, we conditionally grant the writ. The writ will issue only in the event that the trial court does not vacate its order terminating Higdon’s parent-child relationship and dismiss the Department’s SAPCR.

      . The trial judge's comments at the July 28 hearing indicate that she thoughtfully considered relators’ motions and was greatly troubled by the dilemma they presented:
      [I]t seems to me that almost every case I’ve had lately has not been very tidy, and we are out here making law on the — regrettably, in a situation involving a four-year-old child and a 20-month old, and I cannot in good conscience, after hearing from 11 members of the jury that they believe that Mr. Galvan’s client’s parental rights should be terminated and that Ms. Ludwig is not the individual that they have identified as managing conservator, that they do not find that in the best interest of the child.
      I cannot in good conscience fail to give the legislature some latitude in creating section 263.402 for the reasons articulated by the Department.

      . The statute permits a party to avoid waiver by filing either a "motion to dismiss" or a “motion to render a final order” before the dismissal deadline. See Tex. Fam.Code Ann. § 263.402(b) (West 2002). To the extent that the Department argues that relators waived the right to object to the trial court’s failure to dismiss the case because they filed a "motion to dismiss” rather than a “motion to render a final order before the deadline for dismissal,” we construe relators' motions to dismiss as motions to render a final order. Relators motions citing the statutory deadline gave notice to the court and the Department that the case must be dismissed if the court did not render a final order on or before the deadline. We will not find waiver because relators may have incorrectly titled their motion. See In re A.B., 125 S.W.3d 769, 773 n. 2 (Tex.App.—Texarkana 2003, pet. denied) (motion for new trial that alternatively sought dismissal preserved issue for review); see also Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985).

      . See supra note 1.

      . There is also a docket entry dated February 3, 2002 which appoints the Department temporary managing conservator.


author: BOB McCOY, Justice.

text:
    The ESTATE OF Lars Ingerman IVERSEN a/k/a Lars Ingermann Iversen, Deceased.
    No. 2-04-080-CV.
    Court of Appeals of Texas, Fort Worth.
    Oct. 28, 2004.

      Cantey & Hanger, L.L.P., Allan How-eth, Evelyn R. Leopold, Fort Worth, for Appellants.
    N. Alex Bickley, P.C., N. Alex Bickley, Ronald W. Atkins, Dallas, for Appellee.
    PANEL B: HOLMAN, WALKER, and McCOY, JJ.
   OPINION

BOB McCOY, Justice.

I. Introduction

Appellants Jorgen Nylund, Linda Ny-lund Kiev, and Wendy Nylund (“Nylund”) appeal from the probate court’s judgment admitting to probate the purported will of Lars Ingerman Iversen a/k/a Lars Inger-mann Iversen (“Iversen”) and appointing Anna E. Iversen Schoenwandt (“Schoen-wandt”) as independent administratrix. In a single point, Nylund complains that the will is not competent under section 59(a) of the Texas Probate Code (“the Code”) to direct distribution of Iversen’s property and to designate a legal representative of his estate. We will reverse and remand to the probate court.

II. Factual and Procedural Background

Iversen was twice married. His first marriage ended in divorce in 1975, and likewise, the second marriage to Schoen-wandt ended in divorce in 1993. Thereafter, Iversen remained unmarried until the time of his death on August 27, 2003 in Lewisville, Texas at the age of fifty-nine. The Nylund appellants are children of his first marriage. In a document dated April 2, 2000, which is the subject of this appeal, Iversen bequeathed all of his possessions to Schoenwandt as his sole beneficiary, giving her full power of attorney in all of his affairs. The one-page typed document contains Iversen’s signature, which is notarized. The purported will was admitted to probate in the Denton County Probate Court, and Schoenwandt was appointed independent administratrix. Nylund subsequently filed an Opposition to Probate Will and to Issuance of Letters Testamentary and Petition for a Determination of Heir-ship, asserting that the purported will is not valid due to the lack of two attesting witnesses as required by the Code and that the decedent’s property should therefore pass intestate. Nylund further asserted that Schoenwandt is not a proper person to serve in the capacity as independent administratrix.

It is undisputed that the purported will does not contain the signatures of two attesting witnesses. Nevertheless, affidavits of Schoenwandt’s stepdaughter Catherine Tincher and daughter-in-law Melody Schoenwandt were admitted, wherein they testified that they saw Iversen sign the will and that he declared his property-should pass to Schoenwandt. The probate court found that the affidavit testimony reflected Iversen’s testamentary intent and constituted “substantial compliance” with section 59(a) of the Code, id, ordered the will admitted to probate, and appointed Schoenwandt as independent administra-trix. This appeal followed.

III. Legal Analysis

The requirements of section 59(a) of the Code are straight-forward. Subsection (a) requires that a written, nonholographic will (1) be signed by the testator in person or by another person for him at his direction and in his presence, and (2) be attested by two or more credible witnesses above the age of fourteen “who shall subscribe their names thereto in their own handwriting in the presence of the testator.” Tex. Prob.Code ANN. § 59(a). While a notary has been held to account for one attesting witness, see Reagan v. Bailey, 626 S.W.2d 141, 142 (Tex.App.-Fort Worth 1981, writ ref d n.r.e.), it is undisputed that the requirement of two attesting witnesses was not met in this case. The same section of the Code also allows the will to be self-proven; that is, the testimony of the attesting witnesses becomes unnecessary in the probate of the will if affidavits of the testator and the witnesses are made in “substantial compliance” with an affidavit form prescribed in section 59(b) of the Code. Subsection (b) reads as follows:

An affidavit in form and content substantially as provided by Subsection (a) of this section is a “self-proving affidavit.” A will with a self-proving affidavit subscribed and sworn to by the testator and witnesses attached or annexed to the will is a “self-proved will.” Substantial compliance with the form of such affidavit shall suffice to cause the will to be self-proved. For this purpose, an affidavit that is subscribed and acknowledged by the testator and subscribed and sworn to by the witnesses would suffice as being in substantial compliance. A signature on a self-proving affidavit is considered a signature to the will if necessary to prove that the will was signed by the testator or witnesses, or both, but in that case, the will may not by considered a self-proved will.

Tex. Prob.Code Ann. § 59(b) (emphasis supplied). Nowhere in this section, or any other, is there any mention of “substantial compliance” with the attesting signature requirements of the will itself contained in section 59(a). Further, no self-proving affidavits were offered in this case.

None of the cases cited by Schoenwandt stand for the principle that “substantial compliance” is sufficient for the attesting witness requirement of a written nonholo-graphic will not accompanied by a self-proving affidavit.

IV. Conclusion

Therefore, we hold that the probate court erred in ruling that “substantial compliance” in the form of affidavit testimony is sufficient to satisfy the attesting witness requirements of section 59(a) of the Code. We sustain Nylund’s issue, reverse the probate court’s judgment, and remand the case for proceedings consistent with this opinion.

      . Tex. Prob.Code Ann. § 59(a) (Vernon 2003).

      . Because Nylund's argument concerning the continuance of Schoenwandt as independent administratrix does not comply with Rule 38.1(h), it is not addressed in this opinion. TexR.App. P. 38.1(h).


text:
    Jeremy Kim GUTIERREZ, Appellant v. The STATE of Texas, Appellee.
    No. 14-02-01220-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 9, 2004.

      Candelario Elizondo, Houston, for appellant.
    Carmen Castillo Mitchell, Houston, for appellee.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and SEYMORE.
   OPINION ON REMAND

CHARLES W. SEYMORE, Justice.

Appellant, Jeremy Gutierrez, was convicted of felony theft. On direct appeal, appellant contended that the trial court erred by (1) admitting an accomplice’s videotaped statement, (2) admitting his own videotaped confession made after he requested counsel, (3) admitting his own videotaped confession because it was the product of undue influence, (4) failing to include an instruction in the jury charge about his request for counsel, and (5) failing to include an instruction in the jury charge about undue influence. On original submission, we affirmed appellant’s conviction. However, the United States Supreme Court subsequently decided, Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), addressing the admissibility of testimonial hearsay under the Confrontation Clause of the United States Constitution. Therefore, on petition for discretionary review, the Texas Court of Criminal Appeals vacated our judgment and remanded the case for us to consider the admissibility of the accomplice’s videotaped statement. We affirm.

I. Background

Appellant was employed as a pharmacist technician for the Methodist Hospital in Houston. He had access to expensive drugs. Appellant stole pharmaceutical drugs from Methodist Hospital pharmacy and sold them to Christopher Felan, formerly a pharmacy technician at M.D. Anderson Cancer Center. Federal agents and Houston Police Department (HPD) officers convinced Felan to set up a drug transaction with appellant while wearing a wire to record their conversation. During the transaction, appellant requested $7,500 for drugs that were in the trunk of his car. The police arrested him immediately.

After his arrest, officers took appellant into an interview room and informed him of his rights. At the beginning of his videotaped statement, the officers again informed appellant of his rights. They also informed him that he had a right to have a lawyer present to advise him prior to and during questioning. Appellant then asked, “Can I have him present now?” Officer J.H. Davis with HPD responded affirmatively, but told appellant that officers would terminate the interview, put him back in his cell, and not speak to him further. Officer Davis then asked appellant if he wanted an attorney present, and he replied, “No.” Officers assured appellant that he could have an attorney present, but he stated that he would like to continue without one. Appellant’s attorney arrived and entered the interrogation room toward the end of appellant’s videotaped statement. Appellant conferred with his attorney. Afterwards, the interview continued in the presence of appellant’s attorney.

Appellant later testified that he continued to give his statement because he was told that “if he cooperated and told the truth the judge would give him leniency.” However, none of the officers present during the interrogation testified they offered any such inducement. During the statement, appellant confessed his involvement in the thefts.

In his pretrial motions to suppress, appellant contended his statement had been made after he requested counsel and was the product of undue influence. The trial court denied the motions to suppress.

During trial, the State played Felan’s videotaped statement to the jury. In the videotaped statement, Felan explained the drug-stealing scheme, inculpating appellant and himself. Appellant objected on several grounds, including denial of the right to confrontation and hearsay.

II. Felan’s Statement

A. Admissibility Of Statement

In appellant’s first issue, he contends the trial court erred in allowing Felan’s videotaped statement to be played to the jury. He contends the statement was hearsay and he was denied his Sixth Amendment right to confrontation because Felan was not present to testify.

In Felaris statement, he confessed that he stole drugs from the M.D. Anderson Cancer Center’s pharmacy and resold them. He also implicated three other individuals, including appellant. Felan explained that appellant would steal drugs from Methodist Hospital and Felan would buy them and then sell them to a third individual.

Felaris videotaped statement is hearsay because it is an out-of-court assertion offered to prove the truth of the matter asserted. See Tex.R. Evid. 801(d). However, Felaris videotaped confession is also a statement against penal interest, which is an exception to the hearsay rule. See Tex.R. Evid. 803(24). A statement against interest includes a statement which, at the time of its making, so far tended to subject the declarant to criminal liability that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. Id. Under the Texas Rules of Evidence, an admission against a co-defendant declarant’s penal interest may be admissible against the defendant so long as it is sufficiently against the declarant’s interest to be reliable and is sufficiently corroborated by other evidence. Dewberry v. State, 4 S.W.3d 735, 751-52 (Tex.Crim.App.1999); Tex.R. Evid. 803(24).

However, in Crawford v. Washington, the Supreme Court re-examined the admissibility of out-of-court testimonial statements under the Confrontation Clause. 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. In Crawford, the Court emphasized, “where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” Id. at 1374 (emphasis added). The Court held that out-of-court testimonial statements by a witness, who fails to testify at trial, are barred by the Confrontation Clause unless the witness is unavailable and the accused had a prior opportunity to cross-examine the witness, regardless of whether such statements are deemed reliable under the rules of evidence. Id. at 1369-74.

Although the Crawford Court declined to articulate a comprehensive definition of what constitutes a “testimonial” statement, the court did hold that a statement given during police interrogation is “testimonial.” Id. at 1374. Therefore, the videotaped statement that Felan voluntarily gave to the police qualifies as a “testimonial” statement as a matter of law. Id. at 1364 (stating that “[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not”). Because Felaris videotaped statement was an out-of-court testimonial statement, it is admissible under Crawford only if Felan was unavailable to testify and appellant had an opportunity to cross-examine Felan. Id. at 1369-74. However, appellant had no opportunity to cross-examine Felan either before or during trial. Therefore, the admission of Felaris videotaped statement violated appellant’s Sixth Amendment rights. Accordingly, the trial court, without the benefit of the United States Supreme Court’s decision in Crawford, erred in allowing Felaris statement to be played to the jury.

B. Harm Analysis

A violation of the Confrontation Clause, like other federal constitutional error, is subject to harmless error analysis. Shelby v. State, 819 S.W.2d 544, 546-47 (Tex.Crim.App.1991) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986)). In the case of constitutional error, we must reverse the conviction unless we determine beyond a reasonable doubt that the error did not contribute to appellant’s conviction or punishment. See Tex.R.App. P. 44.2(a).

The Court of Criminal Appeals has adopted a three-prong test for reviewing courts to apply when assessing harm in Confrontation Clause cases. Shelby, 819 S.W.2d at 546-47 (Tex.Crim.App.1991). First, we assume that the damaging potential of the cross-examination is fully realized. Id. Second, with that assumption in mind, we review the error under the following factors: (1) the importance of the witness’s testimony in the prosecution’s case; (2) whether the testimony was cumulative; (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; (4) the extent of cross-examination otherwise permitted; and (5) the overall strength of the prosecution’s case. Id. Finally, in light of the first two prongs, we must determine if the error was harmless beyond a reasonable doubt. Id.

In applying this test, we focus on Felan’s statement and assume that the damaging potential of the cross-examination was fully realized. We assume that appellant would have been permitted to fully cross-examine Felan and, thus, had the opportunity to discredit Felan as a witness. With that assumption in mind, we review the error in connection with the following five factors:

1.The Importance of the Witness’s Testimony in the Prosecution’s Case

In Felan’s statement, he described the drug-stealing scheme in which he and appellant were involved. Felan’s statement was important to the prosecution’s case because Felan indicated that appellant stole drugs from Methodist Hospital and sold them to Felan on three or four occasions.

2. Whether the Testimony was Cumulative

Felan’s statement was cumulative of the other evidence. In particular, in appellant’s own videotaped confession, he de-tañed his participation in the drug-stealing scheme and admitted that he sold the stolen drugs to Felan on four occasions.

3. The Presence or Absence of Evidence Corroborating or Contradicting the Testimony of the Witness on Material Points

The material point in Felan’s statement is that appellant stole drugs from Methodist Hospital and sold them to Felan. Ap-peUant’s own videotaped confession strongly corroborates this. Moreover, the audio tape of the drug transaction, as well as the stolen drugs confiscated from appellant’s car also corroborate appellant’s participation in the drug-stealing scheme.

A The Extent of Cross-Examination Otherwise Permitted

Appellant was not given an opportunity to cross-examine Felan. Appellant was, however, permitted to fully cross-examine the State’s other witnesses.

5. The Overall Strength of the Prosecution’s Case

The State’s case was strong overall, with or without Felan’s videotaped statement. The State introduced appellant’s videotaped confession admitting his participation in the drug-stealing scheme, the testimony of investigating officers who observed the drug transaction between appellant and Felan, a tape recorded conversation in which appellant agreed to sell stolen drugs to Felan, the audiotape of the drug transaction, and the stolen drugs that were confiscated from appellant’s car.

The final step of our analysis requires us to determine, in light of the foregoing examination, whether the error was harmless beyond a reasonable doubt. Shelby, 819 S.W.2d at 546-47. The lawfully admitted evidence overwhelmingly established appellant’s guilt. Moreover, Felan’s statement was corroborated by appellant’s own confession. These factors lead us to conclude beyond a reasonable doubt that admission of Felan’s statement was harmless. See Simpson v. State, 119 S.W.3d 262, 269-71(Tex.Crim.App.2003) (finding confrontation clause violation to be harmless error where evidence of guilt was strong and erroneously admitted statement was corroborated by other evidence adduced at trial). Thus, appellant’s first issue is overruled.

III. Right To Counsel

In appellant’s second issue, he contends that he invoked his right to counsel by asking, “Can I have him present now?” Thus, all statements made thereafter should have been excluded, and the trial court erred by denying his motion to suppress. We review a ruling on a motion to suppress under the standards set forth in Guzman v. State, giving almost complete deference to a trial court’s determination of historical facts and viewing the evidence in the light most favorable to the trial court’s ruling. 955 S.W.2d 85, 87 (Tex.Crim.App.1997). However, we review the trial court’s application of the law to the facts de novo. Id. at 89.

A request for counsel must be “unambiguous,” meaning the suspect must “articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). In Davis, the Court concluded that the following statement by a suspect was an ambiguous articulation of a desire for counsel: “Maybe I should talk to a lawyer.” Id. at 462, 114 S.Ct. 2850. When asked for clarification, appellant stated, “No, I’m not asking for a lawyer.” Id. at 455, 114 S.Ct. 2350. Appellant’s tentative query in this case is somewhat similar.

After appellant was informed of his right to counsel, he asked, “Can I have him present now?” Officer Davis then correctly answered appellant by stating that he could have counsel at that time, however, the questioning would end and appellant was to be returned to his cell. Davis then asked appellant if he wanted counsel present and appellant responded, “No.” Appellant was assured by another officer that he could have counsel present and he again refused.

Whether appellant invoked his right to counsel is determined by reviewing the totality of the circumstances. Smith v. State, 779 S.W.2d 417, 425-26 (Tex.Crim.App.1989); Collins v. State, 727 S.W.2d 565, 568 (Tex.Crim.App.1987). After reviewing all of the dialogue between appellant and the officers, we conclude that appellant’s ambiguous question about counsel was followed by his unambiguous rejection of an attorney’s presence during the interview. Dinkins v. State, 894 S.W.2d 330, 351 (Tex.Crim.App.1995). Accordingly, we overrule appellant’s second issue.

IY. Induced Confession

In appellant’s third issue, he contends the trial court erred in admitting his confession because it was improperly induced by a promise of leniency. In order to preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion and state the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex.R.App. P. 38.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App.1998) (op. on reh’g). Also, the trial court must be given an opportunity to rule expressly or implicitly, or must have refused to rule, and the complaining party objected to the refusal. Taylor v. State, 939 S.W.2d 148, 155 (Tex.Crim.App.1996).

Appellant’s sole objection in his motion to suppress was that he invoked his right to counsel. He did not argue in his motion to suppress or in his supporting memorandum that police improperly induced his confession. Accordingly, we hold appellant did not properly preserve this issue for appellate review. See Tex.R.App. P. 33.1(a)(1). We overrule appellant’s third issue.

Y. Jury Charge

Appellant contends in his fourth and fifth issues that the trial court erred by failing to include instructions in the jury charge about undue influence and invoking the right to counsel. A defendant is entitled to an instruction on the volun-tariness of his confession when the evidence presented at trial raises a factual issue as to whether he had been warned of his rights and voluntarily waived them pri- or to making a statement. Dinkins, 894 S.W.2d at 353-54. It is then proper to include in the jury charge instructions informing the jury that, if a reasonable doubt has been raised as to whether a defendant knowingly, intelligently, and voluntarily waived his rights before giving a confession, the jury must disregard the confession and not consider it for any purpose. Bell v. State, 582 S.W.2d 800, 812 (Tex.Crim.App.1979). In this case, the court gave a general instruction on volun-tariness instead of one that was fact-specific pertaining to appellant’s claim of undue influence. The trial court also informed the jury that they could disregard appellant’s statement if they found it was taken in contravention of the law. The court’s instructions adequately addressed when a statement is made voluntarily and in accordance with a defendant’s rights. Accordingly, we find the court’s charge accurately and sufficiently informed the jury regarding the applicable law. See Mendoza v. State, 88 S.W.3d 236, 240 (Tex.Crim.App.2002) (defendant not entitled to instruction regarding criteria for confessions when instruction on voluntariness is adequate); Atkinson v. State, 923 S.W.2d 21, 23 (Tex.Crim.App.1996). Therefore, we overrule appellant’s fourth and fifth issues and affirm the judgment of the trial court.

      . In his second and third issues, appellant argues that the trial court improperly admitted his videotaped confession. However, as discussed in Parts III and IV of this opinion, we disagree with appellant and hold that his videotaped confession was admissible.


author: JOHN S. ANDERSON, Justice.

text:
    Jennifer ORIJI, Appellant, v. The STATE of Texas, Appellee.
    No. 14-03-00470-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 12, 2004.

      Henry L. Burkholder, III, Houston, for Appellant.
    William J. Delmore, III, Houston, for State.
    Panel consists of Justices ANDERSON, HUDSON, and FROST.
   OPINION

JOHN S. ANDERSON, Justice.

Appellant Jennifer Oriji was convicted by a jury of misdemeanor theft and assessed punishment at thirty days’ confinement in the Harris County Jail. Asserting two points of error, appellant contends: (1) the trial court erred by admitting into evidence her written statement given to store employees when the statement did not include written Miranda warnings; and (2) the evidence is factually insufficient to support her conviction. We affirm.

FACTUAL BACKGROUND

On October 17, 2002, appellant was inside Foley’s Department Store while Diane Cruz, Foley’s Loss Prevention Supervisor, watched her through security cameras. Appellant wore an empty backpack, selected seven items of clothing without apparent regard to price or size, and entered a fitting room. Cruz followed appellant to the fitting room area. Appellant left the fitting room with a full backpack and only two items of clothing in her hands. However, the missing five items were not left in the fitting room or in adjacent areas. When appellant exited the store, Cruz asked her to come to the loss prevention office. Appellant agreed. Inside the office, appellant removed five items of clothing bearing Foley’s tags from her backpack. Appellant had no receipt for the items. Cruz told appellant it was the manager’s decision whether to prosecute for theft and asked appellant to make a written statement. Cruz and another employee witnessed appellant make a written statement wherein appellant admitted taking the merchandise without paying. After the written statement was given, the Houston Police Department was called and appellant was arrested. Before trial, appellant’s motion to suppress her written statement was denied.

SUPPRESSION OF WRITTEN CONFESSION

In her first issue, appellant asserts the trial court erred by admitting into evidence her written statement given to store employees because it did not include written Miranda warnings. Specifically, appellant points to article 38.22, section 2 of the Texas Code of Criminal Procedure as authority for her contention that Miranda warnings are required on the face of the statement, even when the statement is taken by private store security personnel. This statute provides:

[n]o written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding unless it is shown on the face of the statement that: (a) the accused, prior to making the statement ... received from the person to whom the statement is made a warning that: (1) he has the right to remain silent ...; (2) any statement he makes may be used as evidence in court; (3) he has a right to have a lawyer present ...; (4) he has a right to terminate the interview at any time; and (b) the accused, prior to and during the making of the statement, knowingly, intelligently and voluntarily waived the rights set out in the warning prescribed by Subsection (a) of this section.

Tex.Code Crim. Proc. Ann. Art. 38.22 § 2 (Vernon 1979) (emphasis added). Appellant urges that by using “person” rather than “law enforcement official,” the statute facially applies to civilians the same as it applies to law enforcement.

Similar to its preceding provision, article 38.23 states “[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas ... shall be admitted in evidence against the accused on the trial of any criminal case.” Tex.Code Crim. Proc. Ann. art. 38.23(a) (Vernon Supp.2004) (emphasis added). In State v. Johnson, the Court of Criminal Appeals held “the plain language of article 38.23 supports the conclusion that the unlawful or unconstitutional actions of all people, governmental and private alike, fall under the purview of Texas’ exclusionary rule.” 939 S.W.2d 586, 587 (Tex.Crim.App.1996) (stating the word “officer” precedes the word “other,” which means being distinct from those first mentioned). However, for reasons discussed below, we need not determine whether the word “person” in art. 38.22 refers to “any person” as in Johnson or a “law enforcement official.”

The question before us is whether article 38.22 requires Miranda warnings on written statements of the accused taken by private security personnel. We hold, under the particular facts of this case, it does not.

As previously stated, article 38.22 makes inadmissible written statements facially devoid of Miranda warnings produced as a result of custodial interrogation. Tex.Code Crim. Proc. Ann. art. 38.22. In Bass v. State, the Court of Criminal Appeals analyzed article 38.22 and concluded the term “custodial interrogation” was intended by the legislature to be construed consistently with its meaning under the Fifth Amendment of the United States Constitution. 723 S.W.2d 687, 690-91 (Tex.Crim.App.1986). In Miranda v. Arizona, the United States Supreme Court defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); see Escamilla v. State, 143 S.W.3d 814, 821 (Tex.Crim.App., 2004) (citing Paez v. State, 681 S.W.2d 34, 36-37 (Tex.Crim.App.1984) (stating that article 38.22 does not apply to non-law enforcement personnel who are not state agents)). Appellant does not contend Cruz is a law enforcement officer. Accordingly, the “safeguards attendant to custodial interrogation do not come into play unless the person to whom the statements are made is acting as an agent of law enforcement pursuant to a police practice.” Macias v. State, 733 S.W.2d 192, 195 (Tex.Crim.App.1987), cert.l denied, 484 U.S. 1079, 108 S.Ct. 1059, 98 L.Ed.2d 1021 (1988) (citing Paez, 681 S.W.2d at 37). Moreover, appellant’s statement was not the result of custodial interrogation because Cruz was not acting at the request of police officers to elicit incriminating information from appellant. Arnold v. State, 659 S.W.2d 45, 48 (Tex.App.-Houston [14th Dist.] 1983, no pet.). Statements which are not the “result of’ or do not “stem from” custodial interrogation are admissible under article 38.22 on the question of guilt, and not merely to impeach a defendant who testifies. Chambliss v. State, 647 S.W.2d 257 (Tex.Crim.App.1983); Arnold, 659 S.W.2d at 48.

A written statement that does not include Miranda warnings will be inadmissible under article 38.22 if it was made while under custodial interrogation, or, stated another way, if both: (1) the questioning was initiated by law enforcement officials; and (2) appellant was in custody or deprived of freedom in a significant way. In this case, the statements complained of were made to employees of Foley’s Department Store who worked in the loss prevention office. Private citizens, even security guards, are not ordinarily considered “law enforcement officers.” See Ortiz v. State, 727 S.W.2d 37, 38-39 (Tex.App.-San Antonio 1987, pet. ref'd); Lambert v. State, 625 S.W.2d 31, 33 (Tex.App.-San Antonio 1981, no pet.).

The record reflects no evidence that any of the employees were law enforcement officers or agents of law enforcement pursuant to a police practice. Law enforcement officials did not initiate, know of, or acquiesce in Foley’s employees efforts to obtain appellant’s statement, and the record reflects that the store employees obtained the statement to further Foley’s needs in preventing theft, not for law enforcement purposes. Even the appellant recognizes in her brief the store employees were not law enforcement officials. We hold appellant’s written statement was not made as a result of custodial interrogation. Thus, Miranda warnings were not required on the face of the statement.

However, appellant contends the moment the employee made a citizen’s arrest pursuant to article 18.16 of the Criminal Code, she became an agent of the state. As her only authority appellant cites two cases, neither of which was decided in the past seventy-five years, but were decided before the seminal Miranda case. See Smith v. State, 13 Cr. R. 507 (1883) (referring to a predecessor statute and finding the party exercising the right of arrest as a de facto officer); Henderson v. U.S. Fidelity, 298 S.W. 404 (Tex.Com.App.1927). We are unpersuaded that these cases require private citizens to apply the modern day safeguards of Miranda. See Macias, 733 S.W.2d at 195 (stating that “safeguards attendant to custodial interrogation do not come into play unless the person to whom the statements are made is acting as an agent of law enforcement pursuant to a police practice”); Ortiz, 727 S.W.2d at 38-39 (statements made to security guard rather than law enforcement officer were not within purview of article 38.22); see also Kohler v. State, 713 S.W.2d 141, 143 (Tex.App.-Corpus Christi 1986, pet. refd) (finding that Fourth Amendment protections against searches only apply to searches conducted by law enforcement personnel).

Because the written statement was not the result of a custodial interrogation, the statement was admissible under article 38.22 of the Texas Code of Criminal Procedure. We also find no unlawful acts committed by the store employees; therefore, article 38.23 which applies to “all persons” does not offer a ground for suppressing the evidence. See Johnson, 939 S.W.2d at 587. Appellant’s first issue is overruled.

Factual Sufficiency

In her second issue, appellant contends the evidence is factually insufficient to support her theft conviction. Specifically, appellant argues the State’s key witness, Diane Cruz, was not credible. Because appellant does not challenge the legal sufficiency of the evidence, our review of the factual sufficiency of the evidence begins with the presumption that the evidence supporting the judgment was legally suffi-dent. See Clems v. State, 922 S.W.2d 126, 129 (Tex.Grim.App.1996).

In conducting a factual sufficiency review, we view all the evidence in a neutral light, without favoring either party. Johnson v. State, 23 S.W.3d 1, 6-7 (Tex.Crim.App.2000). We will set aside the verdict only if: (1) the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence, if present, is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App.2004); Roy v. State, — S.W.3d -, -, Nos. 14-02-00909-CR, 14-02-00910-CR, 2004 WL 1607489, at *4 (Tex.App.Houston [14th Dist.] July 20, 2004, no pet. h.). When reviewing the evidence, we must give appropriate deference to the jury findings in order to avoid intruding on the fact finder’s role as the sole judge of the weight and credibility of the evidence. Johnson, 23 S.W.3d at 7. Therefore, unless the record reveals a different result is appropriate, we “must defer to the jury’s determination concerning what weight to give contradictory testimonial evidence, because resolution often turns on evaluation of credibility and demean- or.” Id. at 8.

The record reveals the jury’s verdict is supported by the evidence adduced at trial. Cruz had been an employee at Foley’s Department Store for eleven years and was the loss prevention supervisor at the time of the arrest. Cruz testified she first observed appellant on a security monitor and noticed appellant behaving suspiciously. Appellant went into the fitting room with seven items and exited with only two and a now-full backpack. Cruz surveyed all of the fitting rooms and found five hangers, but no clothes. Cruz apprehended appellant when she attempted to leave the store. Appellant accompanied Cruz to the loss prevention office and removed five items of clothing from her backpack. All of the items still had their Foley’s tag attached. Appellant had no receipt for the items. Appellant then signed a written statement admitting guilt in front of Cruz and another employee. However, appellant testified that Cruz was lying. Appellant also denied she had taken any merchandise.

Our evaluation should not intrude upon the fact-finder’s role as the sole judge of the weight and credibility of the evidence. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App.1997). Moreover, “[a] decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State.” Id. at 410. After considering the evidence in a neutral light, we conclude the evidence is not too weak to support the finding of guilt beyond a reasonable doubt, and that contrary evidence was not strong enough to conclude the reasonable doubt standard could not be met. Therefore, appellant’s second issue is overruled.

The judgment of the trial court is affirmed.

      . We note, however, article 38.23 construed in Johnson refers to officers and other persons, while article 38.22 refers only to persons.

      . Article 18.16 authorizes all persons to arrest individuals suspected of theft. See Tex.Code Crim. Proc. Ann. art. 18.16 (Vernon Supp. 2004).

      . We note that because appellant’s statement did not stem from custodial interrogation, it was admissible pursuant to section 5 of article 38.22. Tex.Code Crim. Proc. Ann. art. 38.22 (Vernon 1979).

      . See Tex.Code Crim. Proc. Ann. art. 18.16; see also Simpson v. State, 815 S.W.2d 900, 902 (Tex.App.-Fort Worth 1991, no pet.) (stating that a store security guard had a right to arrest defendant suspected of shop lifting); Rhodes v. State, 712 S.W.2d 235 (Tex.App.San Antonio 1986, no pet.) (finding employee validly arrested customer even though he was not a peace officer after he observed her place a new price tag on merchandise).

      . Cruz testified appellant had an empty backpack and carried seven items of clothing into the fitting room without ever checking their size or price.

      . The evidence at trial also included videotapes of appellant from security cameras inside the store but not inside the fitting room.