David Allen Tovar v. the State of Texas

In The Court of Appeals Ninth District of Texas at Beaumont __________________ NO. 09-25-00354-CR __________________ DAVID ALLEN TOVAR, Appellant V. THE STATE OF TEXAS, Appellee __________________________________________________________________ On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. F22-41144 __________________________________________________________________ MEMORANDUM OPINION David Allen Tovar (“Tovar,” “Appellant,” or “Defendant”) appeals his conviction for continuous sexual abuse of his stepdaughter, Jessica, 1 a child under fourteen years of age. See Tex. Penal Code Ann. § 21.02. Tovar pleaded “not guilty,” 1 We use pseudonyms to refer to the alleged victim, her family, and family friends. See Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal judicial process[]”). 1 but a jury found him guilty as charged in the indictment. The jury assessed punishment at twenty-eight years and the trial court sentenced Tovar in accordance with the jury’s verdict. Tovar timely appealed. For the reasons explained below, we affirm. Indictment In the indictment the Grand Jury alleged as follows: THE GRAND JURORS for the County of Jefferson, State aforesaid, duly organized as such at the July Term, A.D., 2022, of the 252nd District Court of Jefferson County, in said County and State, upon oath in said Court present that DAVID ALLEN TOVAR, hereafter styled the Defendant, did then and there, in Jefferson County, Texas, during a period that was thirty (30) or more days in duration, to-wit: from on or about the 6TH day of APRIL, TWO THOUSAND AND FIFTEEN, through on or about the 5TH day of APRIL, TWO THOUSAND AND TWENTY-ONE, and anterior to the presentment of this indictment, when the Defendant was 17 years of age or older, commit two or more acts of sexual abuse against [Jessica], a child younger than 14 years of age and hereafter styled the Complainant, namely, Aggravated Sexual Assault under Texas Penal Code Section 22.021, namely: The Defendant, did then and there, intentionally or knowingly cause the sexual organ of the Defendant to contact or penetrate the mouth of the Complainant, and The Defendant, did then and there, intentionally or knowingly cause the sexual organ of the Defendant to contact or penetrate the sexual organ of the Complainant, and The Defendant, did then and there, intentionally or knowingly cause the finger of the Defendant to penetrate the sexual organ of the Complainant[.] 2  Issues on Appeal Tovar raises three evidentiary issues on appeal. First, he contends the trial court erred in admitting testimony regarding Tovar’s prior conviction and sex offender registration for a prior sexual assault of a child, pursuant to article 38.37 of the Texas Code of Criminal Procedure. Second, he argues the trial court erred by limiting Tovar’s ability to present evidence and testimony pertaining to a redacted part of the sexual assault nurse examination (SANE) report. Third, he contends the trial court erred by not allowing Tovar to question Jessica regarding her previous sexual conduct pursuant to Texas Rule of Evidence Rule 412. Evidence at Trial Testimony of Drew, Jessica’s Father Drew is Jessica’s biological father. Drew married Jessica’s mother, Christina, after Jessica’s birth. They were married for four years before divorcing. When Drew, Christina and Jessica moved to 1740 Central Drive in Beaumont, Texas, they moved in with Christina’s mother, Rebecca, and her boyfriend, Jeff, and Christina’s brother, Derick. At that time, the home they lived in was a two-story house. After Drew and Christina separated, the two-story house was knocked down, and a smaller one-story house was built on the property. Drew remembers that when he lived in the two- story house, Rebecca was on disability and did not work, kept to herself, slept a lot due to her medications, went to medical appointments, and played games on her 3 electronic tablet. According to Drew, Rebecca spoiled Jessica by taking her to the Dollar Store and buying her things. Drew recalled that Christina and Jessica were close and spent a lot of time together because Christina was not working. Other than Drew, Jeff was the only other person living at the two-story home who had a job because Derick had just been released from prison. After Drew moved out, he initially followed a schedule for seeing Jessica, but the schedule deteriorated over the years. Whenever he spent time with Jessica, she did not complain to Drew about anyone she lived with at 1740 Central Drive and he thought everything seemed fine, even after Christina began her relationship with Tovar. He thought they looked like a happy family even after Christina and Tovar had two sons. After the allegations against Tovar were made and CPS became involved, Jessica began living with Drew and his then girlfriend, now wife, and her two teenage sons. Jessica got along well with the son that was her age but she “butted heads” with the older son. Drew agreed that Jessica and his current wife have a normal stepdaughter/stepmother relationship. According to Drew, Jessica is now living with her one-and-a-half-year-old child and the child’s father. Drew stated that he has a good relationship with Jessica and sees her and her child as often as he can. Drew explained that Jessica has depression, PTSD, and anxiety. Drew estimated that he first noticed the depression about the time of his divorce with Christina when Jessica would have been five or six years old. Jessica also receives 4 counseling for PTSD and anxiety. While she was still living with Christina, Jessica also had an issue with cutting herself, and Jessica told him the self-harming has not been an issue for over a year. During cross-examination, Drew did not recall saying to Christina that he did not believe Jessica. He did remember receiving a “painful” letter from Jessica saying she did not want him to be around and that it contained “hurtful stuff[]” and “felt like more of a cry of help than it did a bashing.” According to Drew, as a child Jessica would sometimes lie about small things like homework but not about anything big. Jessica moved out of Drew’s home at the age of sixteen. At that time, Jessica was eight months pregnant. Drew was not aware of any allegations related to this case until he was contacted by CPS, which according to the record was shortly after Jessica’s counselor had reported the alleged abuse in 2021. Testimony of Detective Robert Campbell Robert Campbell testified that he has been a certified peace officer for twenty- seven years, and he is currently employed with the Texas Municipal Police Association and retired from the Beaumont Police Department. In 2021, he was a special crimes detective for the Beaumont Police Department investigating crimes against children. He recalled receiving and reviewing a CPS faxed referral for a crime against Jessica. When receiving a faxed CPS referral, Detective Campbell would initially review the CPS report to ensure it was a valid report, and then he 5 would verify there was an active warrant and verify jurisdiction. He would then create an offense report and assign the case to himself to investigate. Campbell would obtain information about the suspect and victim and conduct his own research into the suspect’s and victim’s backgrounds. Campbell testified that for a suspect’s background, Campbell would research whether they were a juvenile defendant or an adult offender, whether they had been handled by a police department previously, whether they had been convicted of any crimes previously including what they are currently accused of, and if they are registered on the sex offender database. The State then asked Campbell if he had checked the sex offender database on Tovar. Tovar’s attorney objected. The trial court had the attorneys approach the bench and activated a noise so the jury could not hear the bench conference. Tovar’s attorney argued that if the State was intending to introduce evidence of Tovar’s criminal history, it was “not qualified” to come in. The State’s attorney argued that the evidence should be admitted under article 38.37 of the Texas Code of Criminal Procedure if it can be proven beyond a reasonable doubt, and Tovar’s attorney noted that a hearing outside the presence of the jury was required under article 38.37. The trial court then excused the jury and held a brief hearing on the issue. The State’s attorney informed the trial court that the State intended to introduce evidence that Tovar was a registered sex offender for life based on a prior conviction for sexual assault of a child. Tovar’s attorney argued that the evidence would be “more 6 prejudicial than probative under [Rule] 404[]” and also argued that the sole purpose of the evidence was to “prejudice the jury against [Tovar] in this case.” At the close of the hearing, the trial court overruled the objection and found the evidence is admissible. In this case, Campbell explained to the jury that he investigated Tovar’s background and checked to see if Tovar was a registered sex offender. Campbell testified he located Tovar on the sex offender database and recalled he was the one who had registered Tovar at one point in the past. Campbell also identified Tovar in the courtroom. Campbell identified State’s Exhibit 1 as the sex offender registration that Campbell had filled out for Tovar in 2020. He agreed that State’s Exhibit 1 has Tovar’s signature and thumb print as well as Campbell’s signature. The prior offense listed on the registration was aggravated sexual assault of a child in Hood County, Texas, with a disposition date of March 19, 2002. State’s Exhibit 2, a certified copy of the Hood County judgment was also shown to Campbell, and he confirmed that it is the same offense that was listed in the sex offender registration. State’s Exhibit 1 and 2 were admitted into evidence. Campbell explained that State’s Exhibit 1 listed several dates and identified the date of June 15, 2020, as the date that Tovar had registered, and it also listed another date of April 14, 2021, because Tovar was required to register annually on 7 his birthday. Campbell also confirmed that the exhibit recorded Tovar’s driver’s license, which listed 1740 Central Drive as his address, and the papers stated that sex offenders must register with DPS annually as well. When questioned about the assigned level of “moderate,” Campbell explained that “moderate” is a risk indicator assessed by the State on sex offenders with the risk levels being “moderate[,]” “high[,]” and “extreme.” The last page of State’s Exhibit 1 included a copy of Tovar’s thumb print. Campbell confirmed that State’s Exhibit 2 is a 2002 Judgment Adjudicating Guilt pertaining to Tovar and the offense is for sexual assault of a child under fourteen years of age under Section 22.011 of the Texas Penal Code, and the Judgment states that Tovar was sentenced to prison for eight years. Campbell testified that during the investigation of the allegations that Jessica made against Tovar, there was a Garth House interview with a professional special advocate trained to interview children about traumatic events. Campbell observed the interview of Jessica from another room. Campbell’s report shows that Jessica’s mother, Christina, brought her to the Garth House for the interview. Others who were present on that day at the Garth House included Jessica’s grandmother, Rebecca, and her father, Drew. Campbell explained that he met with Jessica’s mother, Christina, in his office to ensure “she understood the magnitude of the allegations” and to explain what 8 Jessica alleged against Tovar. Campbell recalled that Christina was defensive and “extremely difficult to deal with, almost argumentative” over the course of the investigation. Rebecca was “[v]ery argumentative[] from the start[]” when Campbell talked to her in his office. Neither Christina nor Rebecca believed Jessica. Campbell also confirmed that both Christina and Rebecca knew that Tovar was a registered sex offender and it appeared to Campbell that no one living at the home was bothered by Tovar providing their address when registering each year as a sex offender. When Derick, Christina’s brother, met with Campbell, he also “became very argumentative” and was defensive of Tovar. Derick’s girlfriend (later referenced as Derick’s wife by some witnesses), Carrie, and Jeff, Rebecca’s boyfriend, were also defensive of Tovar during their interviews. In contrast, according to Campbell, Drew, Jessica’s father, was cooperative and maintained contact with Campbell throughout the case. Campbell also conducted an interview of Tovar. During the interview, Tovar told Campbell that he had a good relationship with Jessica but that he thought Jessica was attempting to break up Christina and Tovar because she was jealous of him and of the attention he received from Christina. Campbell agreed at trial that Tovar told Campbell that Jessica was manipulative or hard to deal with. Campbell recalled meeting Jessica and her advocate at his office after the Garth House interview to “go over the basics of the case[]” and to follow up on the 9 written documentation that had been provided to him. As part of the investigation, Jessica had a SANE examination. On cross-examination, Campbell confirmed that the written documentation that he had discussed with Jessica and her advocate consisted of several journals written by Jessica that had been provided to him by Christina. He acknowledged that he had been informed that the journals had been placed in a trash can when the investigation began. In reviewing State’s Exhibit 1 with Tovar’s attorney, Campbell agreed that at the time of the previous conviction, Tovar was nineteen years old when the judgment adjudicating guilt was entered against Tovar because a motion to revoke probation had been filed while Tovar was on unadjudicated probation for the charged offense. Campbell recalled driving by 1740 Central Drive but noted that he had not gone inside the home and acknowledged that he had been told it was a small house with “paper thin walls” numerous times. He was also told that Jessica shared a bedroom with the two younger boys. Campbell recommended that the case be prosecuted by the D.A.’s office. He recalled that there were allegations of both oral and vaginal penetration that had occurred over the course of several years. According to Campbell, during the Garth House interview Jessica stated that when she was eight years old, she had oral sex with Tovar and the last sexual assault occurred in January of 2020 when she was about thirteen years old. 10 Testimony of Christina, Jessica’s Mother Christina testified that she is Jessica’s mother and married to Tovar. She first met Tovar in January 2012 when Jessica was five years old and began a relationship with him at the end of 2013. In April of 2015 when Jessica was eight years old, Tovar moved in with Christina after their first son was born. Christina and Tovar were married in November of 2019. They had two boys together, nine years old and ten years old at the time of trial. Christina recalled that after the two-story house was damaged from storms and hurricanes, they transitioned into the current one-story house on the same property in 2014. Christina testified that she lived in the current house, a one-story three-bedroom house, with her husband (Tovar), her two boys, her brother and her sister-in-law, her mother and her mother’s boyfriend, and her daughter Jessica. Until 2021, Jessica had her own bedroom, which was the middle bedroom. Christina, Tovar, and the two boys had the front bedroom, and Rebecca and Jeff had the last bedroom. Her brother, Derick, and his wife, Carrie, had an air mattress they used on the dining room floor. In 2021, the younger two boys were moved into the middle bedroom with Jessica. Christina was asked about her relationship with her daughter, Jessica, and Christina stated she “thought it was great[]” before all of this occurred. Christina explained that after the divorce from Jessica’s father, who worked a lot while they 11 were married, Christina had a temporary job at a pharmacy for about five months, and Christina was a “stay-at-home mom” and sometimes did odd jobs like babysitting, cleaning houses, or laundry. Christina described Jessica’s relationship with Christina’s mother, Rebecca, as “fine” with some bickering when Jessica became a teenager. According to Christina, Rebecca is “strict,” “hard-headed[,]” and “stubborn.” Christina described Jessica’s relationship with Tovar as “fine[]” and she said they had more of a “friend type” relationship since he was not her father. Christina recalled that Tovar could be “mean sometimes,” and everyone left him alone when he came home from work. Tovar worked at an automotive shop with his workday beginning at 7:30 a.m. Monday through Friday. Sometimes he would not return home until 9:00 p.m. because he was performing other jobs for his boss such as construction or electrical work. Tovar also had technician and automotive continuing education classes at night about once or twice a month. Christina described Jessica’s relationship with Derick as “very good[]” and that she would tell him “everything[]” and liked staying at his house after he moved out. Christina explained that she first learned of the allegations Jessica was making against Tovar when Christina read some entries that had been made on an electronic device or “tablet” that she found out of place and in need of a charge. After charging the tablet, Christina saw a chat exchange where Jessica stated that “she had been raped for six or seven years.” Christina woke Jessica up to ask her about the 12 statement and initially Jessica told Christina to get out of the room because she was still sleeping. Finally, in response to Christina asking who Jessica was referring to, Jessica told Christina, “Your husband. Now can I go back to sleep?” Upon further questioning, Jessica told Christina that Tovar had raped her in Christina’s bedroom. Christina did not call the police and instead called Jessica’s counselors because she believed Jessica was “nonemotional[]” about the situation. Christina testified she had an appointment with Jessica’s counselors the next day and brought them Jessica’s journals that according to Christina, Jessica had thrown away. Jessica’s counselors at Spindletop were Christan and Leah. Jessica was also seeing a psychiatrist at that time. Christina talked to the counselors [b]ecause [they] had already had continuous circumstances that led [Christina] to talk to [Jessica’s] counselors first before going to the police department because, … I did not believe my child, I mean, same song, same dance. Christina could not recall the exact date when she first contacted the counselors and it may have been in June, July, or August, but she agreed it was before October. According to Christina, the counselors wanted Jessica to tell them directly what happened, and they did not want to tell Jessica that they were aware of the allegations. Christina knew Tovar was a registered sex offender and, even though Tovar had been convicted of similar acts against a twelve-year-old, she did not believe Tovar was capable of committing those acts against Jessica. She stated that she has 13 been waiting three years to hear something that would make her think Tovar committed the allegations. According to Christina, she is also a victim of sexual assault, and the perpetrator is currently incarcerated. In her case there were witnesses and physical evidence, which Christina acknowledged is extremely rare. Christina stated that “early on” she told Jessica of her own sexual assault. Christina testified that Kristy, Jessica’s best friend, was also sexually assaulted “almost identically” as to Jessica’s allegations. Christina provided support to Kristy at the time of Kristy’s outcry. Christina bases her disbelief of Jessica on her own circumstances and living in the same household as Jessica. Christina declared there was no privacy in the house and she is not “a closed door person.” Christina recalled that she did not allow Jessica to have her bedroom door closed whenever Jessica was on Zoom with her teachers, and that “[w]e do not have closed doors in my house because I removed those a weekend, but that was just because of me. That’s a me issue.” She stated that Tovar did not have any opportunity to go anywhere with Jessica alone besides a “daddy/daughter dance[]” at school, when Jessica was nine or ten years old, and Christina received special permission from the school for that event and she testified she informed the school Tovar was a registered sex offender. Christina recalled that after Jessica told her of the allegations, Jessica’s communication style changed. Jessica began telling Christina where she was going, as if “[Christina] ha[d] no 14 choice in it[]” and began to request things such as money, and she asked whether Tovar was going to give her a car, which Christina interpreted to be using the allegations as leverage. Christina recalled that Jessica began receiving counseling at age nine, and she was a “hitter[]” and began to get into trouble at school. Christina explained that she, Tovar, Drew and Drew’s wife, would have discussions on how to parent Jessica. Christina believes Jessica did not like having younger siblings and recalled that Jessica would push the younger boys. Christina considered herself involved in Jessica’s life and education. She did not allow Jessica to have access to Facebook or Instagram and would frequently take cell phone privileges away. She did not allow Jessica to be on TikTok, but then discovered she had an account anyway, and they discussed it, and Christina let her stay on TikTok. Through TikTok, Jessica would chat with people using Google Meet and chat rooms, and according to Christina, Jessica would lie about her age, share pictures and her address, and invite others to their home. Christina testified that eighteen-year-olds were trying to come to her house and pick Jessica up when she was twelve and thirteen because Jessica lied about her age. Christina stated that Jessica would watch sad things on the internet, so Christina restricted her internet use. Christina was aware of Jessica engaging in self-harm but testified she did not know when that began because “[i]t depends[ on] what [Jessica] says and what you read.” Christina only saw “some scratches” near 15 Jessica’s feet once. Christina agreed that Jessica wore hoodies, but she never saw marks on Jessica’s arms. Christina was also recalled as a witness for the defense. Christina agreed that the day she learned of Jessica’s allegations, she contacted Spindletop and spoke to Jessica’s counselor and had a meeting with the counselor that day to discuss Jessica “lying about sexual abuse allegations[.]” Christina explained that there was “a short period of time” when Tovar remained in the house after she learned of Jessica’s allegations. When Tovar did leave the house, he stayed with her brother but then moved back, in October, after Jessica moved out. With respect to Jessica’s former best friend, Kristy, Christina recalled that Kristy “never went home unless she had to.” Christina testified that she did not call 911 when Jessica made her allegations against Tovar because she found the allegations “unbelievable[]” based on how she runs her household, and Christina admitted that she “like[s] to control different things[.]” Christina also testified that she did not believe Tovar was guilty of sexually abusing the twelve-year-old female that he had previously been convicted of, even though he admitted to sexually abusing that child. Testimony of Rachel Thomas, R.N., SANE Rachel Thomas testified that she is a forensic nurse at St. Elizabeth Hospital and has been a registered nurse since 1999. As a forensic nurse, she has special training in the care of patients that have experienced sexual assaults. She began her 16 training working with sexual assault victims in 2008. She was certified by the Texas Office of the Attorney General as a certified adult adolescent sexual assault nurse examiner and as a certified pediatric sexual assault nurse examiner. She took two competency tests through the International Association of Forensic Nurses. She first met with Jessica on December 3, 2021, and she prepared a SANE report at or near the time she performed the exam of Jessica. A copy of the SANE report was admitted as State’s Exhibit 3. At the time of the exam, Jessica was fourteen years old and accompanied by her father, Drew. After Thomas gathered basic demographic information, past medical history, and caregiver consent from Drew, she examined Jessica in a private room, outside the presence of Drew. Drew and Jessica reported that Jessica had a prior surgery at age nine, to remove rectal polyps, and that she had a mini stroke at age two. According to Drew, Jessica was currently on Escitalopram and had begun menstruation. Thomas testified that Jessica provided the following information for the history of the sexual assault allegations: My stepdad, David Tovar, sexually assaulted me, rape. He forced me to do something sexual with him. Whenever it started, I was, like, eight, and it’s [been] happening for six years. His private part, penis, he made [me] put it in my mouth . . . he made [me] put my mouth on his penis. We were watching a movie. He got in bed with me and my mom. My mom left to go do some house chores. He made me go under the covers. He made me put his penis in my mouth. My mom walked in, and he pushed me away. And my mom didn’t know, I think. The last time he made me do something sexual was in June. He would come in the room constantly at night. He would take off my shorts and underwear, and he would do stuff with me. Rape me. His penis to vagina. It happened a lot. There was two times he put his penis in my mouth. The second time 17  there was the ring on his penis. He started rubbing my back and rubbing my breast. He got out his penis, and he made me put it on my . . . he made me put my mouth on his penis. I think I pulled back and kicked him away. It happened in the car, both cars, my mom’s and his car. Mom’s car, he could make me uncomfortable. He would put his hand on my leg and roll up my thigh. In his car, that would happen too. He just pulled it, his penis out and started masturbating, jerking it off up and down. In another situation whenever he would be done he would just finish on the [washcloth], come. He would call me sexy. He would call me adorable. Whenever no one was around he would say things like, damn, when I was wearing shorts. So I stopped wearing shorts . . . so I just stopped wearing shorts. He would say I was sexy or I was fine. When he would [do] things to me sexually, rape, it would be between 4 a.m. and 6 a.m. because I was doing online school, and that was an advantage to him. I would be able to sleep in. Thomas recalled that Jessica was calm and maintained eye contact but was playing with a fidget spinner when she provided the history. According to Thomas, Jessica stated that the most recent abuse by Tovar occurred in June of 2021 between the hours of 4:00 a.m. and 6:00 a.m., and Jessica’s age range for all the abuse occurred between the ages of eight and fourteen. Jessica reported having a UTI between the ages of eight and twelve. Jessica told Thomas that CPS was involved in the current case and that she began taking depression medication in 2021. Jessica also reported that after moving in with her father, her nightmares and insomnia went away. Thomas explained that it is not unusual for her SANE report to state “no injury[]” because the “people who hurt kids usually want to keep hurting kids[]” and “they create a space where there’s no pain, where there’s no injury to the children.” Thomas rated Jessica at a Tanner Stage 4, meaning she is almost a fully developed 18 female. Thomas listed “sexual assault per patient history[]” as her impression from the exam, meaning that Jessica had a “very clear description of sexual contact to a child that was an assault.” Since the last reported incident was in June of 2021, almost six months prior to the SANE exam, a crime lab specimen was not taken. Thomas did not document anything unusual about Jessica’s vaginal area. Thomas explained that in the state of Texas, penetration does not actually have to go into the vaginal canal. Upon review, Thomas also stated that she did not document anything about Jessica’s hymen being abnormal, and that it looks “absolutely perfect[,]” which is the “best outcome in cases like these.” On cross-examination, Thomas stated that every word a patient tells her is very important since her job is to write down what the patient says and to report what she sees and hears. In response to being questioned as to whether a SANE report lends any evidence or weight medically speaking, Thomas said: We have a 14-year-old talking to an absolute stranger about things that are considered very personal. And this 14-year-old got naked in a cold hospital gown and a cold exam room and [was] given an entire head- to-toe assessment, including having a vaginal exam and specula, I feel like let’s give - - let’s give credit where credit is due. I mean, I might tell a white lie, you know, if I’m late to work one day and say I had a flat. But I’m not going all the way to go slash my tires to make the story true. Testimony of Christan Pipes, Counselor Christan Pipes testified that as of 2024, she is a fully licensed professional counselor with a bachelor’s degree in psychology, a master’s in clinical mental 19 health counseling, and 3,000 hours of supervision. In 2021, she was a qualified mental health professional working at the Spindletop Center. While at the Spindletop Center, Pipes was Jessica’s case worker. At that time, Pipes was also involved with an internship. She would see Jessica at least once a month, and depending on scheduling, she might see her weekly or every other week. Jessica met with a therapist beginning biweekly, then three times a month, then once a month. Jessica’s meetings with a psychiatrist could have been once a month to at least every ninety days. Pipes’ meetings with Jessica were in person at the Spindletop Center office. Pipes recalled that Christina never allowed Pipes to conduct home visits with Jessica, but Christina would bring Jessica to the office. Pipes explained that she preferred home visits so that she could get a sense of the family dynamics and the home environment. At the time, Jessica’s school was virtual and she was at home 24 hours a day and Pipes likes to see her clients in the environment they are “growing up in.” When Pipes initially met Jessica, she was “very timid” but would open up after a few minutes. Jessica was in middle school when Pipes first started counselling Jessica. Pipes stopped seeing Jessica when she moved to another school district and received a different caseworker. Jessica had the following problems when she was receiving counseling: suicidal thoughts, depression, anxiety, self-harm by cutting, ideations, low self-esteem, isolation, panic attacks, post-traumatic stress disorder, attention deficit hyperactivity, and sibling relational problems. She recalled that she 20 and Jessica informed Christina of her self-harm by cutting and that it did not seem to shock Christina. In the fall of 2021, when Jessica made an outcry, Pipes contacted CPS within an hour of Jessica leaving the office. When she contacted CPS, she had also spoken with her supervisor since Pipes was just an intern at that time. She does not recall Christina ever informing her that Jessica had made an outcry regarding Tovar prior to Jessica making an outcry to Pipes. She recalled a meeting with Christina around the time of the outcry and Christina presented her with a journal, but Christina dismissed the allegations and stated that Jessica was a liar, and Christina alleged it was just like the allegations that Jessica had made against a classmate in middle school. Pipes explained at trial that there had been an incident when Jessica was in middle school and Jessica made an allegation regarding a classmate. Pipes viewed the journal as an indication that Jessica was not being heard, and that she was journaling as a coping skill for depression. Pipes only saw a journal for approximately fifteen minutes when Christina brought it, and Pipes read through it while Christina was talking to her. Pipes did not know if the journal contained any allegation regarding Tovar, and if she had known that it did contain such information, she would have contacted CPS on the day Christina showed her the journals. Pipes testified that the journal was not used in a diagnostic sense, but it was later mentioned by Jessica when she discussed that Christina did not have a right to 21 go through her things or her journal. However, when Pipes scrolled through the journal on the day Christina brought it, Pipes indicated that she did notice Jessica had mentioned self-harming and suicidal thoughts in the journal. Although Pipes was aware of Jessica having suicidal ideations prior to seeing the journal, at the meeting Christina “made it seem as if [Jessica] was actively going through a suicidal crisis.” Since self-harm was made known during Jessica’s intake process, when Pipes and Jessica would talk, Jessica would provide an update to Pipes about whether she had self-harmed or not. After building up a rapport, Pipes was able to see evidence of self-harm on Jessica’s thighs and arms. Pipes was not surprised that Jessica had not informed her of Tovar’s sexual abuse before. She noted that it is not “something teenagers just openly bring up” and “they have to trust somebody enough that they know that person is going to help them” and not dismiss or ignore them. Based on Pipes’ training and experience, it would not shock her if a child was not writing about sexual abuse in their journal if they knew their parent was reading the journal, because the child did not have a sense of privacy. Pipes was aware through discussions with Jessica that Christina often went through Jessica’s phones and messages and reviewed who Jessica was talking to online. According to Pipes, Jessica came in for a session with Pipes and told her that Tovar was coming into her room and told Pipes what was happening. Pipes recalled 22 that Jessica mentioned she had said something to Christina about it and that is why Pipes pulled Christina into the meeting to determine if the allegations had been reported to CPS. According to Pipes, when she informed Christina that she would be contacting CPS, Christina was “[a]lmost defensive and argumentative[]” and tried to dismiss Jessica’s allegations. Pipes agreed that she is a mandatory reporter and if someone makes an outcry of sexual abuse, she must immediately contact CPS. At no point during the meeting with Christina or the meeting when Jessica made an outcry was Pipes ever made aware that Christina had read a social media post alleging rape. After CPS was notified and Jessica had moved out of Christina’s home, Christina would reach out to Pipes via phone calls and text messages trying to discuss the case. Since Jessica was no longer living with Christina, Pipes did not respond to Christina’s phone calls or text messages but did inform Pipes’ supervisor of the communications. After the allegations, Pipes continued to see Jessica, who was still suffering from depression. Jessica discussed with Pipes that Christina was no longer talking to Jessica and how that impacted Jessica’s mental health. Jessica also kept Pipes updated on the status of the investigation, which included the SANE exam. Pipes never asked Jessica about why there was a delay from the time of reporting to the SANE exam. Pipes was later recalled as a witness by the defense. Defense Exhibit 17 was admitted consisting of screenshots of text messages between Christina and Pipes 23 after the allegations had been made. According to Pipes, Christina bombarded Pipes with texts and calls trying to disprove Jessica’s allegations. Pipes thinks it is very important for a mother to believe her daughter when she alleges that someone is hurting her, and that the police should be called. Testimony of Julie Prudhomme, Clinical Director of Garth House Julie Prudhomme testified that she is the clinical director of the Garth House, a children’s advocacy program. She has a bachelor’s degree in psychology from Texas A&M University and a master’s in marriage and family counseling from Southwestern Baptist Theological Seminary. She has completed an internship and passed the State Boards and is licensed by the State of Texas as a licensed professional counselor supervisor. She has been working with the Garth House for twenty-eight years and estimates that she has worked with over a thousand children, as well as their parents and caregivers, and she supervises student counselors, counseling associates, and counseling interns. The Garth House provides forensic interviews that are recorded, last between forty-five minutes to an hour, are conducted by a specially trained forensic Garth House employee, and follow a “free r