BRADLEY SCOTT FUGATE, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed August 18, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01297-CR
No. 05-07-01298-CR
............................
 
BRADLEY SCOTT FUGATE, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F03-46704-V and F03-46712-V
.............................................................
 
MEMORANDUM
OPINION
 
Before Justices FitzGerald, Richter, and Lang-Miers
Opinion By Justice Lang-Miers
 
 
        A jury convicted Bradley Scott Fugate of two offenses of indecency with a child by contact. See Tex. Penal Code Ann. § 21.11(a)(1) (Vernon 2003). It assessed punishment at ten years in prison and a $10,000 fine in each case, with a recommendation that appellant be placed on community supervision. The trial court placed appellant on community supervision for ten years in each case. On appeal, appellant argues that the evidence is factually insufficient to support the convictions, and the trial court erroneously admitted and excluded evidence and denied his motion for mistrial. We affirm.
 
Factual Sufficiency
 
        In his first and second issues, appellant argues that the evidence is factually insufficient to support the convictions. A person commits indecency with a child by contact when
 
with a child younger than 17 years and not the person's spouse, whether the child is of the same or opposite sex, the person:
 
 
 
        (1) engages in sexual contact with the child or causes the child to engage in sexual contact . . . .
 
Id. “Sexual contact” means “any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child” if done “with the intent to arouse or gratify the sexual desire of any person. . . .” Id. § 21.11(c)(1) (Vernon 2003).
        The indictments alleged that appellant did:
 
unlawfully, intentionally and knowingly engage in sexual contact with [C.G.], hereinafter called complainant, a child younger than 17 years and not then the spouse of the defendant, by contact between the hand of the defendant and the genitals of the complainant, with the intent to arouse and gratify the sexual desire of the defendant . . . .   See Footnote 1 ;
 
 
 
unlawfully, intentionally and knowingly engage in sexual contact with [C.G.], hereinafter called complainant, a child younger than 17 years and not then the spouse of the defendant, by contact between the hand of the defendant and the breast of the complainant, with the intent to arouse and gratify the sexual desire of the defendant . . . .   See Footnote 2 
 
        In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Grotti v. State, No. PD- 134-07, 2008 WL 2512832, at *4, 7 (Tex. Crim. App. June 25, 2008); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). Evidence is factually insufficient when the evidence supporting the conviction is so weak that the verdict seems clearly wrong and manifestly unjust, or when the evidence supporting the conviction is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). We may reverse only if the verdict is “manifestly unjust,” “shocks the conscience,” or “clearly demonstrates bias.” Grotti, 2008 WL 2512832, at *4, 7 (quoting Watson, 204 S.W.3d at 426). We cannot reverse when the greater weight and preponderance of the evidence actually favors conviction. Roberts, 220 S.W.3d at 524. And we may not substitute our judgment for that of the jury merely because we would have reached a different result. Grotti, 2008 WL 2512832, at *4, 7; (citing Watson, 204 S.W.3d at 414). Instead, the record must show some objective basis for concluding that the great weight and preponderance of the evidence contradicts the jury's verdict. See Roberts, 220 S.W.3d at 524.
        The complainant, C.G., was seventeen years old when she testified at trial. She described incidents in which appellant engaged in sexual contact with her when she was eleven to thirteen years old. Appellant and his girlfriend, Kathy, and her daughter, R., lived across the street from C.G. C.G. testified that she and R. were good friends and played together almost daily. C.G. said appellant gave her more attention than he did other children, and he talked to her about her relationships with boys and “how far” she had gone with a boy. She said that she and appellant would “wrestle” a lot when they played together. When C.G. was about eleven years old, she, her brother and sisters, and R. rode with appellant in his pick-up truck to his land in Seagoville to ride go-carts. On the way home, C.G. rode in the cab with appellant and the others rode in the bed of the truck. Appellant said something to C.G. and she hit in the arm. He then reached over and grabbed and squeezed her breast over her clothes and laughed. She pushed him off. C.G. did not say anything about this incident to anyone, but later that evening, her brother and one of her sisters asked about it. She got the impression that they had seen appellant grab her breast. She “brushed it off” because she did not want to talk about it.
        C.G. testified about another time when she was about twelve years old and had climbed a tree to isolate herself from others because she was feeling “unsociable” that day. The other children tried to get her to come down and ride go-carts with them, but she refused. At some point, appellant came over and told her to get down. When she did, he put his arm around her and grabbed her left breast and squeezed it over her clothes. She hit him, he chased her, and they wrestled on the ground. She did not think anyone saw appellant grab her breast on that occasion. She did not tell anyone about this incident because she did not know if anyone would believe her.
        C.G. also testified about a time when she spent the night with R. at appellant's house and she and R. fell asleep in the living room. Appellant got up around 5:00 a.m. and turned the television on. She pretended to be asleep, but she could tell appellant was trying to wake her up. Appellant rubbed her shin, and she sat up. Then he put his hand under the cover and rubbed her knee. He slowly moved his hand toward her thigh, rubbing it. Eventually he stuck his hand in her pants and grabbed her pubic hairs under her clothes. He told her she was “a baby” and was nothing like him, that she was “a child compared to him.” When he removed his hand, she went to R.'s room and stayed there until time to get up. She did not tell anyone about this incident because she was afraid of embarrassment and what would happen to R. Appellant also told her not to say anything about this incident because no one would believe her and she would be hurt.
        C.G. related that another time, when she was about twelve or thirteen, she spent the night with R. and R. fell asleep while they were watching television. At some point, appellant moved R. to her room and came back into the living room and sat on the couch with C.G. Appellant held both of her wrists over her head with his left hand and pulled her boxer shorts and panties down with his right hand. He told her not to scream, and he pulled his pants down. After about three attempts to penetrate C.G.'s vagina with his penis, appellant stopped, put a towel over his genital area, and left the room. C.G. put her clothes back on; she left the next morning before breakfast. She did not say anything to anyone about this incident because she felt ashamed and dirty.         Some time in 2003, C.G. told her boyfriend, A.B., about some of these incidents. A.B. told her he was going to tell someone if she did not. But before C.G. told anyone else, A.B. saw her and appellant wrestling on the ground and told C.G. she should yell, “rape.” C.G. said appellant got “in [A.B.]'s face and said, 'That ain't allowed around here.'” Appellant told C.G.'s parents about the incident and C.G.'s mother told her that appellant sounded jealous of A.B.
        A.B. also told R. that her dad was a “pervert.” C.G.'s sister, N.G., heard A.B.'s comments and told her and C.G.'s mother. Then C.G. told her mother generally about the abuse but did not tell her all of the details. Her mother called the police, and C.G. gave two statements to the police in July 2003. C.G. was interviewed by a forensic interviewer with the Dallas Children's Advocacy Center, and, for the next three years, saw a therapist at the Advocacy Center.
        At trial, C.G.'s sister and brother testified that they saw appellant grab C.G.'s breast in the truck when they were returning home from riding go-carts. They explained that they were able to see the incident because they were sitting in the bed of the truck and looking in the mirror on the passenger door. Through the mirror, they saw appellant reach across the seat and grab C.G.'s breast. They each testified that they asked C.G. about the incident later that evening, but she told them it was nothing and they believed her.
        Appellant concedes that the testimony of a child victim alone is sufficient to support a conviction for indecency with a child. See Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1) (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd). But he contends that this is one of those “occasional instance[s]” where the jury made a credibility mistake in believing C.G.'s story. Appellant's sole argument is that the witnesses were not credible. He argues that C.G. is an “admitted liar” whose veracity “is called into question by none other than her own testimony.” He contends that because C.G. did not disclose the “purported rape” during the forensic interview, she had to be lying in the interview or lying at trial when she said appellant sexually assaulted her. He also argues that C.G.'s veracity was undermined by her inconsistency regarding her age when the abuse happened: at one point testifying that she was twelve when the abuse first occurred, but then testifying that she was eleven. And he notes, with regard to the genital touching offense, that C.G. testified on cross-examination that appellant only pulled her pubic hairs and did not touch her genitals, but on redirect, she testified that appellant did touch the outside of her genitals. Additionally, appellant argues that C.G.'s sister and brother were not credible because their accounts of the breast-touching incident in the truck were inconsistent and they could not possibly have seen appellant grab C.G.'s breast by looking in the mirror on the passenger side of the truck. Appellant argues that these “disparities are so profound and manifold that this case presents that rarest of instances - a verdict that is clearly wrong and manifestly unjust.”
        C.G. agreed that her statements to police were inconsistent with her trial testimony in some respects. But, at trial, she gave details of the abuse, and her sister and brother corroborated her testimony about the breast-touching incident in the truck. Although C.G. did not disclose the alleged aggravated sexual assault initially, C.G.'s therapist, Jennifer Lynn Perla, testified that sexual abuse victims generally do not disclose all instances of abuse at one time and, instead, may take years to disclose because they are embarrassed, feel guilty or ashamed, and take responsibility for the abuse. Perla also testified that it is not unusual that victims of sexual abuse may not recall all of the details of the abuse at first because they generally do not want to think about what is happening to them.
        Perla testified that she treated C.G. for over three years and she did not disclose “the incident” where appellant allegedly sexually assaulted her until she had been in therapy for over a year. She said C.G. portrayed symptoms and behaviors typical of a child who had been abused, such as difficulty sleeping, nightmares, headaches, and stomachaches, and had intense fears that appellant would hurt her or someone in her family. And witnesses for both parties testified about C.G.'s character for truthfulness or untruthfulness.         The jury is the exclusive judge of the facts proved and the weight to be given to the testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). Although we may substitute our opinion for the jury's to a very limited degree, our review nevertheless is highly deferential and requires a “high level of skepticism about the jury's verdict . . . before a reversal can occur.” Grotti, 2008 WL 2512832, at *7. The jury had the opportunity to hear the witnesses and consider their credibility. They also had the opportunity to consider appellant's theory of the case. Having reviewed the record under the appropriate standard, we cannot conclude that the jury's verdict shocks the conscience or is manifestly unjust.
        We resolve appellant's first and second issues against him.
 
Evidentiary Issues
 
        In his third, fourth, fifth, and seventh issues, appellant argues that the trial court erroneously admitted or excluded evidence. We review a trial court's ruling to admit or exclude evidence under an abuse of discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). We will uphold the ruling if it lies within the zone of reasonable disagreement. Id.
A.
 
Testimony of Officer Graham
 
        In his third issue, appellant argues that the trial court erred by allowing Officer Colby Graham to testify about the details of C.G.'s statements because he was not the outcry witness. Article 38.072 of the code of criminal procedure authorizes an exception to the hearsay rule and allows the first adult to whom a child makes an outcry regarding physical or sexual abuse to testify about that outcry. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005). Appellant contends that Officer Graham was not the first adult to whom C.G. made an outcry and his testimony concerning her outcry was not admissible. The State argues that Officer Graham did not testify about the details of C.G.'s outcry except under questions on cross-examination by appellant. We agree with the State.         On direct examination by the State, Officer Graham testified that he was dispatched to Seagoville regarding a child abuse investigation. He spoke with the victim and her mother. He said C.G. just started talking and he did not have to ask her many questions. She told him what happened and was able to tell him approximate dates, times, places, and other details. Without going into those details, Graham testified that C.G. described more than one event involving two different areas of the body. He also testified that he spoke to C.G.'s sister and A.B. and watched the forensic interview.
        On cross-examination, appellant asked Officer Graham to describe the details he had only generally referred to on direct examination. The State objected that the question called for hearsay, and the trial court overruled the objection. Officer Graham then described the first incident that C.G. told him about, where appellant grabbed C.G.'s pubic hairs. This is the specific testimony about which appellant complains on appeal. Because the testimony was elicited by him on cross- examination, he has not preserved this issue for our review.   See Footnote 3  See Tex. R. App. P. 33.1.
        We resolve appellant's third issue against him.
B.
 
Evidence of Extraneous Offense
 
        In his fourth issue, appellant argues that the trial court erred by admitting evidence of an extraneous offense. See Tex. R. Evid. 403. He contends that A.B.'s testimony that appellant “leered” at C.G. was evidence of an extraneous offense for which the State had not provided notice. After a hearing outside the presence of the jury, the trial court overruled appellant's objection, stating that he did not consider the testimony an extraneous offense. A.B. then testified that he saw appellant looking at C.G. with “a deep stare, maybe unusual.” He said the stare struck him as unusual “[b]ecause I was there to meet [appellant] and he didn't really stare at me a whole lot.”         Appellant contends that “[s]taring or leering at an underage child in a suggestive manner is tantamount to a sexual proclivity and practice.” However, A.B. did not testify that appellant “leered” or stared at C.G. in a suggestive manner; he said the stare was “unusual.” Additionally, there was other unobjected-to testimony that appellant stared at C.G. C.G.'s mother testified that she saw appellant looking at C.G., who was dressed in a swimsuit, in a way that made her uncomfortable; C.G.'s aunt testified that she saw appellant stare at C.G. and lick his lips with a “snicker” on his face; and a friend of C.G.'s family testified that she saw appellant glare at and watch C.G. Even if it was error for the court to allow A.B.'s testimony about the “deep stare,” it was rendered harmless when other such evidence came in without objection. See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).
        We resolve appellant's fourth issue against him.
C.
 
Therapist's Testimony About C.G.'s Fears
 
        In his fifth issue, appellant argues that the trial court erred by allowing Perla, a licensed professional counselor, to testify about C.G.'s fears of appellant. Appellant objected to this evidence as hearsay. The trial court conducted a bench conference that was not recorded. When trial resumed, the State again asked Perla about C.G.'s expressions of fear, to which appellant objected as hearsay. The trial court immediately overruled the objection without stating its basis and without requiring the State to articulate an exception to the hearsay rule. Perla then testified that C.G.
 
had a fear that he would run her off the road, that he would come outside her window and get her to come outside the house, that he would poison her dog, that he would hurt somebody in her family, that he would come after her in school. At that time I believe he was the janitor at her school.
 
        Appellant argues that this testimony was inadmissible hearsay. The State responds that it was admissible under the hearsay exception for statements made for purposes of medical diagnosis and treatment. See Tex. R. Evid. 803(4). We do not need to decide whether the statements made to Perla qualify as an exception to hearsay under rule 803(4), because the trial court could have reasonably concluded that the statements were an exception to hearsay under rule 803(3) as statements of C.G.'s then existing emotional or mental condition. See Tex. R. Evid. 803(3).   See Footnote 4  A statement that, on its face, expresses the declarant's state of mind, such as fear, hate, love, and pain, are admissible under rule 803(3). See Garcia v. State, 246 S.W.3d 121, 132 (Tex. App.-San Antonio 2007, pet. ref'd); Menafee v. State, 211 S.W.3d 893, 895-96 (Tex. App.-Texarkana 2006, pet. ref'd); Salazar v. State, 127 S.W.3d 355, 362-63 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd).
        Perla testified that she counseled C.G. about the abuse and how it affected her and that C.G. portrayed typical symptoms and behaviors of a child who had been abused. One of those symptoms was “intense fears.” Perla then testified about C.G.'s specific fears. The trial court could have reasonably concluded that C.G.'s statements to Perla about her perceived fears were statements of her then existing emotional or mental state and were admissible as an exception to hearsay under rule 803(3). See Salazar, 127 S.W.3d at 362-63. Accordingly, the trial court did not abuse its discretion by overruling appellant's hearsay objection.
        We resolve appellant's fifth issue against him.
D.
 
Testimony about Complainant's Prior Sexual Experience
 
        In his seventh issue, appellant argues that the trial court erred by not allowing him to cross- examine C.G. about her prior sexual experience. Appellant specifically sought to cross-examine C.G. on statements to her parents and to a friend about her sexual activity.
        In his offer of proof, he asked C.G. whether she told her mother that she lost her virginity to her boyfriend, Jake, but the next day, told her father that she really lost her virginity to appellant. These statements were made in close proximity to C.G.'s outcry about the alleged aggravated sexual assault. For that reason, appellant contends that these statements were admissible to show C.G.'s motive to accuse him of the sexual assault so that she would not get in trouble for having sex with her boyfriend. Appellant also sought to introduce the videotape of R.'s forensic interview in which R. said that C.G. told her about an incident where a boy put his hand in C.G.'s pants. The State objected that the evidence was hearsay.
        The trial court ruled that C.G.'s statements to her parents about her loss of virginity were statements about an extraneous offense and were not relevant to whether appellant touched C.G. years before. Later, the trial court clarified its ruling, stating that this evidence was not relevant because the touching occurred, if it did, prior to the alleged aggravated sexual assault. He also noted that the outcry on the touching offense was in 2003, but the outcry on the aggravated sexual assault was not until 2005. The court ruled that, even if the evidence was relevant, it was more prejudicial than probative under rule 403. With regard to R.'s statements that C.G. told her about prior sexual activity she had with a boy, the trial court ruled that this conduct was not relevant because it did not mirror the genital touching offense on trial, did not happen on a couch, and involved a boy, not an adult.
        On appeal, appellant contends that excluding this evidence was a denial of his right to confront the witness under the Sixth Amendment. But appellant did not raise this issue below and did not preserve it for our review. See Tex. R. App. P. 33.1; Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005). We may not reverse a trial court's decision regarding the admissibility of evidence on a ground not raised below. See id.
        Appellant also contends that this “evidence would have annihilated [C.G.'s] credibility before the jury in two ways. First, it would have refuted her claim that no one else had touched complainant in an inappropriate fashion, . . . and thus, shown her to be a liar. Second, it would have shown for the jury her motive to concoct these allegations against Appellant, namely: to provide cover for her own sexual activity.” With the exception of certain criminal convictions, however, specific instances of the conduct of a witness are not admissible for purposes of attacking or supporting the witness's credibility. See Tex. Rs. Evid. 608(b), 609. To the extent appellant contends the evidence was admissible to attack C.G.'s credibility, his argument lacks merit. See Ramirez v. State, 802 S.W.2d 674, 676-77 (Tex. Crim. App. 1990).
        Specific instances of conduct may be admissible to show motive. See Tex. R. Evid. 404(b). Even then, however, the evidence may be excluded if its potential for unfair prejudice substantially outweighs its probative value. See Tex. R. Evid. 403. The trial court has wide latitude in limiting cross-examination out of concern for harassment, prejudice, or confusion of the issues. Mumphrey v. State, 155 S.W.3d 651, 664-65 (Tex. App.-Texarkana 2005, pet. ref'd). We may reverse a trial court's decision following a rule 403 balancing “rarely and only after a clear abuse of discretion” is found. See Morales v. State, 222 S.W.3d 134, 148-49 (Tex. App.-Corpus Christi 2006, no pet.) (quoting Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999)). Factors a trial court considers in determining whether the danger of unfair prejudice substantially outweighs the probative value of evidence include (1) the extent to which the evidence makes a fact of consequence more or less probable; (2) the potential of the evidence to impress the jury in an irrational but indelible way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. See State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005); Chaddock v. State, 203 S.W.3d 916, 923 (Tex. App.-Dallas 2006, no pet.). When the record is silent about the trial court's balancing of these factors, as in this case, we presume the trial court conducted the balancing test. Bargas v. State, 252 S.W.3d 876, 893 (Tex. App.-Houston [14th Dist.] 2008, no pet.) (citing Williams v. State, 958 S.W.2d 186, 195-96 (Tex. Crim. App. 1997)).         The evidence that appellant sought to introduce through R. relating to C.G.'s sexual activity with her boyfriend did not relate to the charged sexual contact offenses, but was offered to impeach C.G.'s credibility relating to her accusation two years later that appellant also sexually assaulted her. C.G. outcried about the charged sexual contact offenses in 2003; she outcried about the alleged aggravated sexual assault in 2005. Additionally, R.'s forensic interview contained inadmissible hearsay and, as the trial court noted, C.G.'s conduct discussed in that interview was not at all similar to the charged offenses. For these reasons, we conclude that the probative value of this evidence to show C.G.'s motive to fabricate the allegations against appellant is slight at best, and its admission had the potential to impress the jury in an irrational and indelible way. We cannot conclude that the trial court's exclusion of this evidence lies outside the zone of reasonable disagreement. We conclude that the trial court did not abuse its discretion by excluding this evidence.
        We resolve appellant's seventh issue against him.
 
Motion for Mistrial
 
        In his sixth issue, appellant argues that the trial court erred by denying his motion for mistrial following his objection to Perla's testimony about an extraneous offense:
        Q.
 
In your opinion, was power and control exhibited in this relationship?
 
        A.
 
Yes.
 
        Q.
 
How so?
A.
 
There was an incident where [C.G.] says that [appellant] hit her. Of course, when he wrestled with her, he was pinning her down, so, of course, he had more power and control. He used to - she reported that he hit his daughter and his girlfriend or wife in her presence.
 
        Appellant objected that he did not receive notice of this extraneous offense and that it violated the motion in limine. The trial court sustained the objection, instructed the jury to disregard the statement, and denied appellant's motion for mistrial. On appeal, appellant contends that the instruction was not effective to cure the error because the jury's “verdict hinged upon whether it placed belief in complainant's account or Appellant's lack of character.”
        We review a trial court's ruling on a motion for mistrial for an abuse of discretion. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). We must uphold the trial court's ruling if it lies within the zone of reasonable disagreement. Id. A mistrial is required “[o]nly in extreme circumstances, where the prejudice is incurable[.]” Id. (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)). A prompt instruction to disregard ordinarily will cure any error associated with an improper question and answer. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). And we presume that the jury followed the trial court's instruction to disregard testimony in the absence of evidence that it did not. See State v. Boyd, 202 S.W.3d 393, 402 (Tex. App.-Dallas 2006, pet. ref'd). Factors we consider in determining whether the trial court erred by denying a motion for mistrial are (1) the severity of the misconduct, (2) curative measures that were taken, and (3) the certainty of conviction without the misconduct. See Hawkins, 135 S.W.3d at 77.
        Appellant argues that Perla's testimony was “particularly vile” because it elicited evidence that he was violent towards women of his own family and was aimed at character assassination in violation of evidence rule 404. He also contends that the instruction to disregard was ineffective because it elicited evidence of an extraneous violent crime in the context of a sex-based offense. Lastly, appellant contends that the likelihood of his conviction without this error was not great because the testimony was “he said, she said” and turned on the jury's assessment of credibility.
        We first note that the record does not show that the State asked the question with the intent that Perla would testify about an extraneous matter. Additionally, the testimony was isolated and not repeated. Because the trial court promptly instructed the jury to disregard the testimony, and the record does not show that the jury failed to do so, we presume the jury followed the court's instructions. See Boyd, 202 S.W.3d at 403. Although some of the testimony could be characterized as “he said, she said,” two of the State's witnesses testified that they observed appellant committing one of the charged offenses. We cannot say, therefore, that the likelihood of conviction was not great without this misconduct. We conclude that the trial court did not abuse its discretion by denying appellant's motion for mistrial.
        We resolve appellant's sixth issue against him.
 
Conclusion
 
        We affirm the trial court's judgments.
 
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
 
 
 
071297F.P05
 
Footnote 1 Case no. 05-07-01297-CR; trial court no. F03-46704-V.
Footnote 2 Case no. 05-07-01298-CR; trial court no. F03-46712-V.
Footnote 3 Appellant attempted to further question Officer Graham about details of the abuse, the State again objected that it called for hearsay, and the trial court sustained the objection. Appellant responded, “Well, Judge, I'm going to need to make a bill if I'm not going to be allowed to ask my questions.”
Footnote 4 Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial
 
        The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
 
        * * *
 
        (3) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.