Clark Aaron Travis v. the State of Texas

Court of Appeals Tenth Appellate District of Texas 10-25-00084-CR Clark Aaron Travis, Appellant v. The State of Texas, Appellee On appeal from the 369th District Court of Leon County, Texas Judge Charles Michael Davis, presiding Trial Court Cause No. 23-0019CR JUSTICE SMITH delivered the opinion of the Court. MEMORANDUM OPINION Clark Aaron Travis was charged with nine counts alleging various acts of sexual abuse committed against five different children. A jury found Travis guilty of seven counts of sexual assault of a child, one count of sexual assault, and one count of aggravated sexual assault of a child.1 Travis presents nine 1 In Count Six, Travis was charged with continuous sexual abuse committed against two of the alleged victims, “Amber” and “Helen.” The jury convicted him of the lesser-included offense of aggravated sexual assault of a child against Amber. issues on appeal. He alleges the trial court erred by denying his motion for mistrial and admitting witness testimony after violations of the witness sequestration rule, erroneously cumulating certain sentences, refusing to order the State to disclose witness interview notes, excusing a juror over objection, partially closing the courtroom during trial, and excluding and admitting certain evidence. We affirm. Motion for Mistrial and Admission of Witness Testimony In his first and second issues, Travis claims that violations of Texas Rule of Evidence 614 (“the Rule”) by multiple witnesses warranted a mistrial and the exclusion of “Joanna’s” testimony. See TEX. R. EVID. 614. He asserts that the Rule violations “impacted the testimony of nine potential witnesses[,]” resulting in cumulative harm or structural error. We disagree. STANDARD OF REVIEW AND RELEVANT LAW We review a trial court’s denial of a motion for mistrial and a trial court’s admission of evidence for an abuse of discretion. Archie v. State, 221 S.W.3d 695, 699-700 (Tex. Crim. App. 2007); McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). Rule of Evidence 614, known as “the Rule,” provides for the exclusion of witnesses from the courtroom during trial. See TEX. R. EVID. 614. Its purpose is to prevent the testimony of one witness from influencing the testimony of Clark Aaron Travis v. The State of Texas Page 2 another. See Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996). The trial court must instruct witnesses who are placed under the Rule that they may not converse with each other or with any other person about the case, except by the court’s permission. See TEX. CODE CRIM. PROC. ANN. art. 36.06. A violation of the Rule is not, in itself, reversible error. See Archer v. State, 703 S.W.2d 664, 666 (Tex. Crim. App. 1986). The trial court may exclude the violating witness’s testimony, but the appropriate sanction for a witness’s violation of the rule is left to the sound discretion of the trial court. See Bell, 938 S.W.2d at 50. In our review, we consider whether the defendant was harmed or prejudiced by the witness’s violation and look at (1) whether the witness actually conferred with or heard testimony of other witnesses, and (2) whether the witness’s testimony contradicted testimony of a witness from the opposing side or corroborated testimony of a witness she had conferred with or heard. Id. (citing Webb v. State, 766 S.W.2d 236, 240 (Tex. Crim. App. 1989)). BACKGROUND Travis was a youth minister at a church in Buffalo, Texas, where each of the complainants attended services at various times. Two of the complainants, “Jamie” and “Joanna,” are sisters. Jamie testified in front of the jury on the first day of trial testimony. Clark Aaron Travis v. The State of Texas Page 3  Following the third day of trial testimony, the stepmother of Jamie and Joanna contacted the prosecutor after learning about potential violations of the Rule. Jamie had informed the stepmother that a courtroom observer, Audra Rhodes, had been communicating with Brandi Marshall, a defense subpoenaed witness, about testimony from the trial. According to the stepmother, Marshall was relaying this information to Jamie and Joanna’s mother, who was a State subpoenaed witness. The mother then attempted to share the information with Jamie and Joanna, despite Jamie and Joanna’s consistent protests. The prosecutor then spoke directly with Jamie and Joanna, who confirmed the allegations about their mother’s attempted communications. The prosecutor notified defense counsel and the trial court so that the violations could be addressed the following morning. At an in-chambers hearing, Travis moved for a mistrial. The trial court took the motion under advisement, and then conducted an extensive hearing outside of the jury’s presence about the alleged violations. A summary of the relevant information and testimony follows. After Rhodes admitted that she informed Marshall of “some of the statements that are being made” in the courtroom, the trial court held Rhodes in contempt and remanded her into custody until the trial concluded. Marshall later admitted that Rhodes talked to her about “[m]ostly everything” that was Clark Aaron Travis v. The State of Texas Page 4 happening in trial, including Jamie’s testimony. Marshall further testified that she relayed some of the information provided by Rhodes to Jamie and Joanna’s mother. The trial court held Marshall in contempt and remanded her into custody as well. The trial court also questioned Jamie, who confirmed that her mother attempted to relay information from Marshall to her. When asked whether the information her mother discussed “related to anybody else’s testimony, or just your own[,]” Jamie responded, “Just my own.” Jamie further testified to her belief that her mother was communicating about the trial with her stepfather, who was under the Rule. Joanna testified that her mother called her on the telephone more than once and tried to give her information about the trial. Joanna, however, repeatedly told her mother to stop telling her information about trial. Regarding what specific information Joanna learned from her mother, she testified that “the only thing that I really found out about anybody’s testimony was that [Marshall] was laying on the pew. I don’t know anything about the full story of that, or anything. I don’t know anything that was said in here, or nothing like that.”2 Joanna also admitted that she asked Jamie if “it was looking good or bad[,]” and Jamie responded “not to worry about it.” 2 Travis also mentions alleged Rule violations by “Boy [Jamie]” and Jamie’s fiancé. These allegations stem from Joanna’s text message to the prosecutor about the Rule violations. The message said that Clark Aaron Travis v. The State of Texas Page 5  The mother of Jamie and Joanna confirmed that Marshall obtained information from someone observing the trial and then shared that information with her. The mother also testified that she talked to Jamie about the digital evidence displayed during Jamie’s testimony. She further confirmed that both Jamie and Joanna told her not to talk about the trial with them. The mother admitted that she spoke with Jamie and Joanna’s stepfather about the trial information that Marshall had relayed to her. The trial court held the mother in contempt and remanded her into custody. The trial court denied Travis’s motion for mistrial and overruled his request to prohibit Joanna from testifying in front of the jury. However, the trial court ordered that Travis could cross-examine witnesses about the Rule violations in front of the jury, including permitting Travis to recall witnesses who had already testified to bring to light their role, if any, in the violations. Sealed copies of Joanna’s forensic interview, her sexual assault examination history, and her sworn testimony from a prior trial were also admitted. “Boy [Jamie] told [Jamie’s fiancé] they asked about a phone after [Jamie’s fiancé] told him he didn’t want to know and he wasn’t allowed to and [Jamie’s fiancé] told mom when he was told[.]” Jamie’s fiancé testified on the second day of trial testimony and was not recalled to develop this alleged violation. “Boy [Jamie]” did not testify at trial and was not called as a witness to develop any evidence about this alleged violation. Clark Aaron Travis v. The State of Texas Page 6 ANALYSIS As to Joanna, Travis generally states, without citation to the record, that the case is “riddled with examples of [Joanna] changing her recollection of events.” However, Travis does not identify any way in which Joanna’s trial testimony was altered by the Rule violations. Though Jamie and Joanna’s testimonies were corroborating in the sense that they alleged inappropriate sexual conduct, they each testified to their own individual experiences with Travis based on separate facts and circumstances. See Martinez v. State, 186 S.W.3d 59, 66 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). Moreover, the trial court took several curative measures to alleviate potential prejudice from the Rule violations as they may have related to Joanna’s testimony, including admitting sealed copies of Joanna’s forensic interview, her history at her sexual assault examination, and her sworn testimony from a prior trial. On appeal, Travis does not point to any discrepancies between Joanna’s testimony and her prior statements. Defense counsel also cross-examined Joanna in front of the jury about the Rule violations. See Miller v. State, No. 01-19-00126-CR, 2020 WL 4590304, at *7 (Tex. App.—Houston [1st Dist.] Aug. 11, 2020, no pet.) (mem. op., not designated for publication) (citing Reed v. State, No. 14-02-00671-CR, 2003 WL 21782537, at *3 (Tex. App.—Houston [14th Dist.] July 31, 2003, pet. ref’d) Clark Aaron Travis v. The State of Texas Page 7 (mem. op., not designated for publication) (finding no abuse of discretion where witness was cross-examined in front of jury about Rule violation)). We find that the trial court did not abuse its discretion in admitting Joanna’s testimony despite the Rule violations. Accordingly, we overrule Travis’s second issue. Travis’s complaint regarding his motion for mistrial is that the extensive Rule violations undermined the integrity of the proceedings as a whole and violated his right to due process and right to cross-examination of witnesses. Travis claims that he was harmed because the “witnesses involved are all central to all the claims in the case.” A mistrial is an extreme remedy reserved for a narrow class of circumstances in which “the prejudice is incurable.” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Travis did not identify, at trial or on appeal, any specific prejudice suffered as a result of the Rule violations, arguing instead that there is no way to measure the potential harm caused. He conceded at oral argument that there was no direct proof that the Rule violations impacted any witness’s testimony. Therefore, we cannot say that the trial court abused its discretion in denying Travis’s motion for mistrial, and we overrule his first issue. Closing the Courtroom In his sixth issue, Travis asserts that the trial court violated his Sixth Amendment right to a public trial by excluding certain groups of people from Clark Aaron Travis v. The State of Texas Page 8 the courtroom after the Rule violations. See U.S. CONST. AMENDS. VI, XIV. We find that Travis failed to preserve this issue for appellate review. ANALYSIS After the witness sequestration rule violations came to light, the trial court excluded the following groups of people from the courtroom for the remainder of the trial: On the defense side, any family members of your witnesses, church members, former church members. And on the prosecution side, any family members, witnesses, family members [sic], and et cetera […] But if -- the Court reserves the right should I -- somebody come in there that appears suspicious, or doesn’t seem to have - - you know, which has happened before, if something appears suspicious, the Court will inquire to find out, and I reserve the right to bar any other individuals as well. The right to a public trial is forfeitable and must be preserved by a timely, specific objection. Dixon v. State, 595 S.W.3d 216, 222-23 (Tex. Crim. App. 2020). The complaining party must also obtain an adverse ruling on the objection or object to the trial court’s failure to rule. Id. at 223. Travis acknowledges on appeal that he failed to object to the trial court’s closure of the courtroom to these groups of observers. We find that Travis has waived this issue for appellate review. See TEX. R. APP. P. 33.1(a); Dixon, 595 S.W.3d at 222-23. Accordingly, we overrule Travis’s sixth issue. Clark Aaron Travis v. The State of Texas Page 9  Non-Disclosure of Witness Interview Notes In his fourth issue, Travis contends that the trial court erred by refusing to order the prosecutor to produce her witness interview notes to the defense. We disagree. STANDARD OF REVIEW AND RELEVANT LAW Relevant here, article 39.14 of the Code of Criminal Procedure requires the State to produce or permit inspection of any “offense reports” and any “written or recorded statements of […] a witness” if they “constitute or contain evidence material to any matter involved in the action[.]” TEX. CODE CRIM. PROC. ANN. art. 39.14(a). However, the statute excludes from disclosure “the work product of counsel for the state in the case[,]” subject to the overriding duty to disclose “any exculpatory, impeachment, or mitigating […] information in the possession, custody, or control” of the State. Id. art. 39.14(a), (h). We review a trial court’s ruling on discovery under article 39.14 for an abuse of discretion. Sopko v. State, 637 S.W.3d 252, 256 (Tex. App.—Fort Worth 2021, no pet.). If the trial court abuses its discretion, this error is subject to a non-constitutional harm analysis under Rule 44.2(b). Hallman v. State, 721 S.W.3d 307, 308-09 (Tex. Crim. App. 2025). Clark Aaron Travis v. The State of Texas Page 10 RELEVANT BACKGROUND Defense counsel made an oral motion before the second day of trial testimony for “any notes, or transcriptions of interviews” that the prosecutor had conducted.3 While the prosecutor agreed that “if a witness is to provide me either orally, or in my notes, or any indication of evidence that is exculpatory, mitigating, or impeaching, I will provide that to counsel for the defense[,]” she objected to disclosing her personal notes because article 39.14 expressly excludes work product from discovery. The prosecutor also provided an example of another case in which she apparently provided to defense counsel exculpatory, mitigating, or impeachment evidence obtained during an oral conversation with a witness. The prosecutor affirmed to the trial court, in reference to the existence of any information that needed to be disclosed from her witness interviews, “There’s nothing here[.]” Defense counsel clarified that she was not requesting any notes that include “impressions, or opinions from the attorneys, which are obviously work product[,]” but wanted the “content” of what the witnesses were saying after the State “remove[d] their impressions, 3 Specifically, defense counsel requested the trial court to “instruct the State that if any conversations at all are had with any [witnesses] in this case, that they continue to prepare for trial, that the notes of what they’re saying be turned over to us as they’re developed, because whether it’s contradictory, corroborative, or otherwise, it is material to the case, and very important for us to have in this case where everything depends on the credibility of - - of these complainants.” Clark Aaron Travis v. The State of Texas Page 11 their work product notes, any opinions that they’re forming as attorneys[.]” The trial court took the motion under advisement. The following day, defense counsel re-urged the motion for the State’s notes and moved for a mistrial, arguing: it’s very easy for the witness to say they don’t remember, or to deny what was said in those meetings. For those reasons, we believe that any notes from - - we believe that any notes from meetings between the prosecutors, their staff, and the complaining witnesses that contain either corroborating statements, or contradictory statements, or even statements that they don’t remember is required to be turned over, and using the work product sort of excuse limits us from the evidence that we’re entitled to. Defense counsel alternatively suggested an in-camera review of the State’s notes. The trial court overruled the motions and denied the request for an in- camera review of the prosecutor’s notes. Though the trial court granted a running objection, defense counsel re-urged the request for the State’s notes and included their continued non-disclosure as grounds supporting motions for mistrial at various points during the trial.4 ANALYSIS Citing to a concurring opinion in In re State ex rel. Ogg, Travis proposes on appeal that the prosecutor in this case “assume[d] the role of investigator” 4 In the trial court, defense counsel also alleged prosecutorial misconduct and spoliation of evidence relating to the prosecutor’s witness interview notes. Travis does not carry these contentions forward on appeal. Clark Aaron Travis v. The State of Texas Page 12 by personally interviewing witnesses and developing her own strategy. See In re State ex rel. Ogg, 630 S.W.3d 67, 70-71 (Tex. Crim. App. 2021)(Newell, J., concurring). As such, he equates the prosecutor’s notes from the witness interviews, if any, to “investigative reports” subject to disclosure under article 39.14(a). He also takes issue with the State’s failure to take notes during all of the witness interviews, contending that “any interview conducted” should have been “memorialized and presented” to him. First, we agree with the State that this case is distinguishable from In re State ex rel. Ogg. In that case, after the district attorney’s office learned that a law enforcement raid was based on false information provided by one of the detectives, the district attorney’s office “undertook an independent investigation” of the officers involved. Id. at 70. The trial court compelled disclosure of “reports, maps, and power points” created by the investigators in the district attorney’s office, finding that they qualified as “offense reports” subject to discovery because the district attorney’s office was “the investigating entity for the offenses at issue.” Id. at 67-68. The State apparently conceded that “the requested documents would be discoverable if they had been created by the police department.” Id. at 72. Here, however, the district attorney’s office and its investigators were not the “investigating entity” for the offenses Clark Aaron Travis v. The State of Texas Page 13 at issue, and the documentation Travis sought to obtain was the prosecutor’s personal notes. Secondly, as to Travis’s contention that the prosecutor was required to memorialize her witness interviews and provide those documents to him, article 39.14 does not require the State to create a document that is not already in its possession, custody, or control. In re State ex rel. Skurka, 512 S.W.3d 444, 454-55 (Tex. App.—Corpus Christi-Edinburg 2016, orig. proceeding). We also note that while the State, as acknowledged by the prosecutor, has an overriding duty to disclose any exculpatory, impeachment, or mitigating information despite any claimed work-product privilege, the statute does not mandate a particular mechanism for that disclosure. See TEX. CODE CRIM. PROC. ANN. art. 39.14(h). Finally, Travis has not directed us to any case in which a prosecutor’s trial preparation notes from witness interviews qualify as a “witness statement” subject to disclosure under article 39.14(a). We find instructive the definition of a “witness statement” found in Rule of Evidence 615(f), entitled “Producing a Witness’s Statement in Criminal Cases.” See TEX. R. EVID. 615(f). Under Rule 615(f), a “witness statement” is defined as: (1) a written statement that the witness makes and signs, or otherwise adopts or approves; (2) a substantially verbatim, contemporaneously recorded recital of the witness’s Clark Aaron Travis v. The State of Texas Page 14 oral statement that is contained in any recording or any transcription of a recording; or (3) the witness’s statement to a grand jury. Id. Courts have commonly held that prosecutor’s notes do not qualify as a “witness statement” under Rule 615(f) and its predecessor statute. See, e.g., Pondexter v. State, 942 S.W.2d 577, 582-83 (Tex. Crim. App. 1996); Smith v. State, 65 S.W.3d 332, 343 (Tex. App.—Waco 2001, no pet.). Considering the foregoing, we cannot say that the trial court abused its discretion in determining that the prosecutor’s notes were not subject to disclosure under article 39.14. Accordingly, we overrule Travis’s fourth issue. Excused Juror In his seventh issue, Travis contends that the trial court reversibly erred by dismissing a juror on the second day of testimony and seating an alternate juror in his place. We disagree. STANDARD OF REVIEW AND RELEVANT LAW A trial court may dismiss a juror who is “found to be unable […] to perform [his] duties” and replace him with an alternate juror. See TEX. CODE CRIM. PROC. ANN. art. 33.011(b). Appellate courts have held that being “unable” to serve in article 33.011 is indistinguishable from being “disabled” as used in article 36.29. See id. art. 36.29; Colvin v. State, 467 S.W.3d 647, 652 (Tex. App.—Texarkana 2015, pet. ref’d). “Disabled” means that the juror is Clark Aaron Travis v. The State of Texas Page 15 suffering from a “physical illness, mental condition, or emotional state that would hinder or inhibit the juror from performing his or her duties as a juror[.]” Scales v. State, 380 S.W.3d 780, 783 (Tex. Crim. App. 2012). The trial court must make a finding, sufficiently supported by the record, that the juror was disqualified or unable to perform his duties. Id. at 784. We review a trial court’s decision to dismiss a disabled juror for an abuse of discretion and view the evidence in the light most favorable to the trial court’s decision. Id. ANALYSIS Here, the trial court dismissed the juror and seated an alternate juror after hearing sworn testimony from the dismissed juror’s mother. The mother explained that the juror had been diagnosed with profound social anxiety, that he received medical care from a psychiatrist and a neurologist, and that he “has a 70 percent disability with the V.A.” She testified that his service on the jury was “too much,” that he began repeatedly vomiting at 6:30 that morning, and that he was continuing to vomit when she left for the courthouse at 8:30 a.m. The mother also stated her belief that the juror’s condition would not ease or change if he continued serving on the jury, and she requested that the trial court dismiss him for his physical and mental well-being. Clark Aaron Travis v. The State of Texas Page 16  Travis agrees that a trial court generally does not abuse its discretion in discharging a juror as disabled when emotional stress resulted in the juror’s physical illness. His complaint centers on the sufficiency of the evidence supporting the trial court’s determination because the trial court did not hear directly from the dismissed juror about his disability and because his mother did not provide any corroboration for her testimony about the juror’s mental condition. He also asserts that the trial court failed to enter an order that the juror was disabled “as envisioned by the statute.” We agree with the State that the trial court is not required to speak directly with a juror before making a disability determination. See Scales, 380 S.W.3d at 784 n. 18. Neither must the court obtain medical corroboration before discharging a juror as disabled. Fernandez v. State, 597 S.W.3d 546, 570-71 (Tex. App.—El Paso 2020, pet. ref’d). Further, while we may not presume from a silent record that a juror’s dismissal was proper, the law does not require a formal order. See Scales, 380 S.W.3d at 784. In deciding to dismiss the juror, the trial court described its inability to accommodate an “individual with an anxiety issue of this magnitude, of which he’s on 70 percent disability for,” to enable his continued service on the jury. The record sufficiently supports the trial court’s dismissal of the juror. Accordingly, we overrule Travis’s seventh issue. Clark Aaron Travis v. The State of Texas Page 17  Prior Sexual History In his fifth issue, Travis alleges that the trial court abused its discretion by sustaining the State’s objection to rebuttal testimony about Jamie’s prior sexual behavior under Texas Rule of Evidence 412. See TEX. R. EVID. 412. We disagree. STANDARD OF REVIEW AND RELEVANT LAW In a sexual assault case, specific instances of a complainant’s prior sexual conduct are generally inadmissible. Former TEX. R. EVID. 412(a) (repealed and replaced by Supreme Court Order of Aug. 25, 2025, Misc. Docket 25-9064). There are, however, five narrow exceptions to this general rule. Id. R. 412(b)(2)(A-E). Relevant here, specific instances of a complainant’s prior sexual conduct may be admissible if the evidence is necessary to rebut or explain scientific or medical evidence offered by the State. Id. R. 412(b)(2)(A). Before this type of evidence may be admitted at trial, the proponent must follow a specific procedure. Id. R. 412(c). Before offering any evidence of the victim's past sexual behavior, the defendant must inform the court outside the jury's presence. The court must then conduct an in camera hearing, recorded by a court reporter, and determine whether the proposed evidence is admissible. The defendant may not refer to any evidence ruled inadmissible without first requesting and gaining the court's approval outside the jury's presence. Id. Clark Aaron Travis v. The State of Texas Page 18  Such evidence is also subject to a balancing test that requires weighing its probative value against the danger of unfair prejudice. Id. 412(b)(3). We review a trial court’s decision to exclude evidence for an abuse of discretion, and we will uphold a trial court’s evidentiary ruling if it is reasonably supported by the record and is correct under any applicable theory of law. Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008). RELEVANT FACTS During the State’s case-in-chief, Jamie testified that she experienced significant pain and an excessive amount of bleeding when Travis attempted to penetrate her vagina with his penis at her grandmother’s tax office. One of the other complainants who was in the bathroom when the alleged sexual assault occurred said that she heard Jamie say, “stop, it hurts[,]” and later observed blood running down Jamie’s leg. Jamie also provided similar information during her sexual assault medical examination. Two sexual assault forensic examiners testified that Jamie had a hymenal transection. They explained that this type of injury was a “very abnormal” and “severe” injury, and would have caused a significant amount of bleeding and pain. Travis later called Jamie’s ex-boyfriend as a witness at trial. After establishing general background information, while in front of the jury, defense counsel asked the ex-boyfriend if he and Jamie had ever been sexually Clark Aaron Travis v. The State of Texas Page 19 active together. The State objected that defense counsel failed to comply with the procedural requirements in Rule 412 and violated the State’s motion in limine. After the jury was excused from the courtroom, the trial court directed defense counsel to read the procedural requirements in Rule 412, which counsel acknowledged required an in-camera hearing and an admissibility determination before the evidence was offered. Since the jury was not in the courtroom, however, the trial court conducted the in-camera hearing. The ex- boyfriend testified that he and Jamie had sexual intercourse together one time before she began dating her fiancé. Because Jamie was already dating her fiancé at the time Travis allegedly sexually assaulted her, Travis wanted to offer the ex-boyfriend’s testimony as an alternative cause of Jamie’s hymenal transection. The trial court sustained the State’s objection and prohibited further questioning about specific instances of sexual conduct. ANALYSIS Travis argues that the ex-boyfriend’s testimony was admissible to discredit Jamie’s testimony that she was a virgin at the time she was sexually assaulted by Travis and to rebut the medical testimony suggesting that Travis caused Jamie’s injury. Clark Aaron Travis v. The State of Texas Page 20  However, defense counsel acknowledged that she mistakenly violated the procedural requirements of Rule 412 and apologized for doing so. A defendant who fails to meet the procedural requirements of admissibility for Rule 412 cannot later complain on appeal of the trial court’s exclusion of the evidence. See Marx v. State, 953 S.W.2d 321, 337 (Tex. App.—Austin 1997), aff’d, 987 S.W.2d 577 (Tex. Crim. App. 1999). The trial court’s ruling is reasonably supported by the record and is correct under this theory of law. Moreover, we cannot say that the proffered evidence contradicts or provides an alternate explanation for the State’s medical evidence. The State’s medical evidence established that the type of injury Jamie sustained would cause significant pain and bleeding; meanwhile, the ex-boyfriend described their sexual encounter as “normal” and did not recall Jamie bleeding profusely as a result of their encounter. Finally, to the extent that Travis argues on appeal that the trial court’s exclusion of this testimony inappropriately “limited [his] right to cross- examine one of his prior accusers,” we must disagree. Travis did not attempt to cross-examine Jamie about her prior sexual conduct either before or after the trial court’s ruling on the ex-boyfriend’s testimony. Accordingly, we overrule Travis’s fifth issue. Clark Aaron Travis v. The State of Texas Page 21  Expert Witness Qualifications In his eighth and ninth issues, Travis argues that the trial court abused its discretion by admitting the testimony of Jamie’s counselor and Joanna’s counselor, challenging their qualifications to testify as expert witnesses. We disagree. STANDARD OF REVIEW We review the trial court’s decision to allow a witness to testify as an expert for an abuse of discretion. Gonzales v. State, 4 S.W.3d 406, 417 (Tex. App.—Waco 1999, no pet.). Expert witness testimony that a child exhibits characteristics common among sexually abused children is relevant and admissible under Rule 702 because it is specialized knowledge that is helpful to the jury. Id. A trial court is not required to follow a rigid formula in determining whether a particular witness is qualified to give expert testimony, and the expert witness’s knowledge or experience about a relevant issue need only exceed that of an average juror. Id. ANALYSIS Kate Browning, a Licensed Professional Counseling Associate with a Master of Science in Clinical Mental Health Counseling from University of Mary in North Dakota, personally conducted twenty-two counseling sessions with Jamie over a nine-month period. Through her post-graduate education Clark Aaron Travis v. The State of Texas Page 22 and training through the Children’s Advocacy Centers of Texas, Browning received training in child and adolescent counseling, trauma counseling, child sexual assault counseling, advanced cognitive behavioral therapy, and child- centered play therapy. She further received training through the Yale School of Medicine in child-family traumatic stress intervention. Browning testified that she had counseled over one hundred children. Jessica Covarrubias, a Licensed Professional Counseling Associate with a master’s degree with a concentration in clinical mental health from Sam Houston State University, personally conducted thirty-six sessions with Joanna over a one-year period. Covarrubias had previously testified as an expert in one criminal case and in custody cases involving the Department of Family and Protective Services. At the time of trial, she had also counseled over one hundred individuals. Travis argues that neither Browning nor Covarrubias had the training or experience to render an opinion about whether their respective clients exhibited symptoms consistent with a child who had been sexually abused. Specifically, he takes issue with their “limited counseling experience,” the requirement that their work be supervised by a fully licensed therapist, and that their training was limited to sexual assault victims. As to Covarrubias, Clark Aaron Travis v. The State of Texas Page 23 he also notes that she was unable to “differentiate from the root cause of the trauma suffered by [Joanna].” A witness is not per se disqualified from testifying as an expert simply because her counseling work must be supervised by a licensed professional counselor. See Harnett v. State, 38 S.W.3d 650, 659 (Tex. App.—Austin 2000, pet. ref’d). Neither does the number of sexual abuse victims counseled by Browning and Covarrubias undermine the trial court’s determination of their qualifications. See Biggins v. State, No. 2-02-086-CR, 2003 WL 1784924, at *3 (Tex. App.—Fort Worth Apr. 3, 2003, no pet.) (mem. op., not designated for publication) (expert witness had counseled forty to fifty sexually abused children). Overall, the record demonstrates that Browning and Covarrubias possessed knowledge and training about sexually abused children that exceeds that of an average juror. Considering each witness’s background, we cannot conclude that the trial court was unreasonable in determining that Browning and Covarrubias were qualified to render expert opinions on whether Jamie and Joanna exhibited symptoms consistent with those commonly exhibited by sexual abuse victims. Accordingly, we overrule Travis’s eighth and ninth issues. Clark Aaron Travis v. The State of Texas Page 24  Cumulative Sentences In his third issue, Travis asserts that the trial court’s cumulation orders in Counts Two, Three, Four, Eight, and Nine violate article 42.08 of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 42.08; See also Former TEX. PENAL CODE ANN. § 3.03(b)(2). We agree, in part. RELEVANT LAW When a defendant has been convicted in two or more cases, article 42.08(a) of the Code of Criminal Procedure authorizes the trial court to order that “the judgment in the second and subsequent convictions may […] be that the sentence imposed or suspended shall begin when the judgment and the sentence imposed or suspended in the preceding conviction has ceased to operate.” TEX. CODE CRIM. PROC. ANN. art. 42.08(a); see also Former TEX. PENAL CODE ANN. § 3.03(b)(2) (permitting cumulation of certain sentences arising out of the same criminal episode prosecuted in a single action). However, the cumulative total of suspended sentences in felony cases is limited to a maximum of ten years. TEX. CODE CRIM. PROC. ANN. art. 42.08(a). As explained by the Court of Criminal Appeals, a trial judge's decision to cumulate under Texas Code of Criminal Procedure, Article 42.08(a), is “a normative, discretionary function that does not turn on discrete findings of fact.” As a result, when a trial judge lawfully exercises the option to cumulate, that decision is unassailable on appeal. But when a trial judge unlawfully enters a cumulation order in a case that did not involve Clark Aaron Travis v. The State of Texas Page 25  a negotiated plea agreement, the appellate court, according to our precedent, will reform the judgment by deleting the order. Beedy v. State, 250 S.W.3d 107, 110 (Tex. Crim. App. 2008). ANALYSIS Contrary to Travis’s contention, the sentence in Count Eight is not one of the probated sentences relevant to his issue on appeal. Travis was sentenced in Count Eight to two years confinement. We overrule Travis’s contention that the sentence in Count Eight is an unlawfully cumulated suspended sentence. We summarize Travis’s sentences in the relevant counts as follows: • Count Two: five years in prison, probated for ten years; to run consecutively to the two-year prison sentence in Count Eight5 • Count Three: two years in prison, probated for ten years; to run consecutively to the probated sentence in Count Two • Count Four: two years in prison, probated for ten years; to run consecutively to the probated sentence in Count Three • Count Nine: five years in prison, probated for ten years; to run consecutively to the probated sentence in Count Four The State agrees that the cumulation orders in the judgments concerning probated sentences, as they currently stand, are unlawful. However, the State advocates for a remedy that would reduce the underlying terms of confinement 5 Count Eight was the final count in the cumulation of all of th