Full opinion text
OPINION J. WOODFIN JONES, Chief Justice. A jury convicted appellant Felix Sandoval of the offense of sexual assault of a child, see Tex. Penal Code § 22.011(a)(2)(A), and assessed his punishment, enhanced by a prior felony conviction, at confinement for 80 years in the Institutional Division of the Texas Department of Criminal Justice. See id. §§ 22.011(f) (categorizing offense as second degree felony), 12.42(b) (providing that at trial of second degreé felony offense, defendant shall be punished for first degree felony upon proof of previous felony conviction), 12.32 (punishment range for first degree felony is imprisonment for life or any term not more than 99 years or less than 5 years). In nine points of error on appeal, appellant complains about the removal of a juror during deliberations, the admission of hearsay evidence, the admission of improper opinion testimony, and the admission of character-conformity evidence. For the following reasons, we reverse appellant’s conviction and remand the cause to the trial court for a new trial. BACKGROUND The record reflects that on July 14, 2010, the victim, C.E., turned 15 years old. Appellant was married to C.E.’s aunt, and occasionally C.E. spent the night in their home to visit their daughter, C.E.’s younger cousin. In November 2010, C.E. disclosed to another cousin, B.E., that on one overnight visit earlier that year appellant forced her to have sexual intercourse with him. The cousin got her father, CJE.’s uncle, and had C.E. repeat the information to him. He, in turn, got C.E.’s mother and had C.E. tell her mother. C.E.’s mother, Rosie, reported the incident to police the following day. Daniel Preston, a patrol officer with the City of Kyle Police Department, responded to a dispatch call concerning C.E.’s complaint of sexual assault. He met with C.E. and her mother at the police station, where he interviewed them and took written statements from both of them. During the officer’s testimony at trial, the written statements of both C.E. and Rosie were admitted for the limited purpose of showing what information the officer acted on. In order to “minimize any perceived prejudice to the defendant,” the trial court ordered that the statements not be published to the jury until C.E. and her mother testified. Officer Preston testified that C.E. and her mother both told him that appellant had sexually assaulted C.E. the preceding summer when C.E. spent the night at his house to visit her younger cousin. In his testimony, the officer repeated the details of C.E.’s account of the alleged sexual assault. According to the information he received, C.E. spent the night at her aunt’s house one night between mid-July and mid-August 2010. The next morning, her aunt and cousin left to go to the store, but C.E. remained behind to sleep some more. After her cousin left, C.E. locked the bedroom door and returned to bed. She then heard appellant repeatedly knocking on the door seeking entrance. C.E. refused to open the door, telling him to go away. She got up out of bed and went to sit on a couch by the window to await her aunt’s return. However, appellant somehow unlocked the door and entered the bedroom. According to C.E.’s report to the officer, appellant then came toward her and began hugging her and kissing her on the mouth. C.E. told the officer that she moved her head from side to side to avoid the kisses and told him to stop. She said that appellant then threw her on to the bed and when she attempted to get up he pushed her back down on the bed. They struggled over her sweat pants — when appellant repeatedly attempted to remove them she kept pulling them back up — until he managed to remove them completely after he grabbed her hands. She reported that when he held her hands, it caused her pain. C.E. told Officer Preston that appellant inserted his penis into her vagina as she continued to struggle and fight. She said that appellant had intercourse with her for approximately five minutes and then stopped. He told her not to tell anyone about what had happened and then took his clothes and went into the bathroom. When her aunt and cousin returned, C.E. pretended nothing had hap-, pened. She did not say anything until November 14 of that year, when she revealed the assault to her 15-year-old cousin. In his testimony, the officer confirmed that what C.E. told him was “in line” with what her mother told him had happened. The officer also testified that during his interview of C.E., she gave a description of a tattoo on appellant’s upper arm. During questioning on redirect examination, the State showed Officer Preston a photograph of a tattoo on appellant’s arm taken during his jail book-in, and the officer opined that it matched the description C.E. gave him. In addition, Officer Preston described the clothing that C.E. reported appellant had been wearing at the time of the assault — a white t-shirt and camouflage shorts. The officer also said that C.E. indicated that she did not report the assault sooner because she was scared. He further testified that C.E.’s written statement comported with what she had told him in the interview and, further, that he “didn’t find any glaring discrepencies or inconsistencies ... that would raise red flags.” After taking the report, he forwarded the case to the Criminal Investigation Division. Pedro Carrasco, a detective with the Kyle Police Department, was assigned to investigate the case. He set up a forensic interview of C.E. at the local child advocacy center. As part of his investigation, he reviewed the video of the interview. He opined in his testimony at trial that C.E.’s forensic interview was consistent with both the written and oral statements C.E. had provided Officer Preston. He also explained that in her forensic interview C.E. described a tattoo on appellant’s left arm. After being shown a photograph of appellant’s tattoo by the prosecutor, he opined that' it matched the description C.E. gave to the interviewer. Detective Carrasco also testified that he had not observed anything in C.E.’s forensic interview that indicated to him that she had fabricated the allegations. The detective also testified that, as part of his investigation, he made contact with appellant, who agreed to come in to the police station for a voluntary interview. During the interview, appellant recalled the night that C.E. spent the night at his house that summer, and he remembered that his wife had left the house for 10 to 15 minutes and then returned. Throughout the interview, appellant repeatedly denied committing the offense and expressed that “[he was] not a molester.” He indicated that he did not know C.E.’s motives for falsely accusing him, but offered several possible reasons for the accusation, including the family’s dislike of him. At the end of the interview, appellant offered to give a DNA sample and, after the detective’s request, indicated that he would consider taking a polygraph test. However, the detective had no further communications with appellant after the interview. The video recording of the interview was admitted into evidence, in its entirety, and played for the jury during the detective’s testimony. Also during his testimony, Detective Carrasco confirmed that he had received information about an admission that appellant made to his wife that “seemed to corroborate that [appellant] had had intercourse with C.E.” His subsequent testimony revealed that this corroborating information came from appellant’s in-laws. Allegedly, appellant admitted having had sex with his niece to his wife, who then told her mother, who then told C.E.’s mother, Rosie, who then told Detective Carrasco. In concluding his direct testimony, the detective detailed the considerations that led to his opinion that appellant had committed the sexual assault. After the law enforcement officials testified, C.E.’s family members testified about her disclosure of the sexual assault. C.E. disclosed the sexual assault first to her 15-year-old cousin, B.E., at a family gathering. B.E. then told her father, Jesse, and had C.E. tell him what • had happened. Jesse then notified his sister, C.E.’s mother, and was with them when C.E. told her mother about the assault. During his testimony at trial, Jesse described C.E.’s demeanor when she told him about the assault and when she recounted the details of the sexual assault to her mother. In her testimony, B.E. recounted the details of the sexual assault as C.E. had described it to her. She also described C.E.’s demeanor when she told about the assault, indicating that C.E. was upset. The State offered C.E.’s hearsay statements to her cousin as an “excited utterance,” and the trial court admitted them as such. C.E.’s mother, Rosie, also testified at trial. While she did not provide the details of the sexual assault that her daughter had shared with her, she testified that C.E. identified appellant as the one who sexually assaulted her. She described C.E. as “emotional” when she told her about the assault. Rosie’s written statement to Officer Preston, detailing her daughter’s account of the sexual assault to her, was admitted “for all purposes” during her testimony. Much of Rosie’s testimony rebutted the assertions appellant made in his interview with the detective. For example, she denied that C.E.’s biological father might have sexually molested her daughter and denied knowing any reason why her daughter might have fabricated these allegations against appellant. Rosie also testified that she had learned earlier from her oldest daughter, J.A., that appellant was sexually interested in children. Rosie’s daughter, J.A., was 20 years old at the time of trial. She testified that appellant had a reputation among the children in the family for being a “pervert” and that she had warned the younger girls in the family, including C.E., to avoid him. She expressed her opinion that appellant was a sexual predator because of something he tried with her — several instances that had made her “feel uncomfortable.” She alluded to three instances of conduct, recounting the details of the last incident, which occurred when she was nine or ten years old. She described an occasion in which she and appellant were in his bedroom, she was standing between his legs as he sat on the bed, and he grabbed her by her butt and pulled her toward him with a “creepy” smile on his face. Melissa Rodriguez, the program director at the local child advocacy center, conducted the forensic interview of C.E. She testified about the process of foren-sieally interviewing children and the expected behaviors of children when being interviewed. She also discussed factors that forensic interviewers consider when determining whether abuse allegations may be fabricated. She did not recount the details that C.E. shared with her about the sexual assault. She did, however, testify that nothing in the interview contradicted the report of sexual assault that she had received from law enforcement prior to the interview. She also indicated that she had prior experience with children who had fabricated allegations of sexual abuse and testified that she did not have any concerns that C.E. had fabricated these allegations, reported no such concerns to law enforcement, and saw “no red flags at all.” Finally, C.E. testified about the sexual assault appellant perpetrated against her that summer. She testified that although she was suspicious of her uncle, having been warned about him by her sister, J.A., she nonetheless had overnight visits at her aunt’s house on several occasions to visit her younger cousin. She testified that during that summer, in late July or early August, she spent the night in her cousin’s bedroom. She said the next morning she stayed at the house while her cousin and aunt went to the store because she wanted to sleep some more. After they left, she locked the bedroom door and got back into bed. Immediately, she heard her uncle knocking on the door telling her to open the door. She refused and told him to go away. She then heard something at the door, got scared, and went to sit on the couch by the window to check for her aunt. C.E. testified that as she sat on the couch, she heard her uncle picking the lock. She said she did not know how, but her uncle gained entry into the room. He moved toward her and sat next to her on the couch. When he sat down, she stood up. He then stood up as well, grabbed her, and starting kissing her on the mouth. She said she tried to avoid his kisses, moving her head and trying to back away, but he was too strong. She testified that they struggled, and eventually he pushed her onto the bed. She said appellant then got on top of her and starting kissing her again. He removed her pants, and, after some effort, put his penis into her vagina. She estimated the incident lasted for less than five minutes, after which appellant stopped, got up, and left, telling her to say nothing. C.E. then got dressed and returned to the couch to wait for her aunt to come home. She testified that she did not tell anyone in her family because she did not know what they would think. She was close to her cousin, B.E., however, and eventually told her about the incident because keeping it a secret “was killing [her] inside.” During C.E.’s testimony, the State reoffered her written statement, which the court admitted without limitation. In providing the details of the sexual assault, C.E.’s testimony essentially repeated the accounts provided in Officer Preston’s testimony, her cousin’s testimony, her mother’s written statement, and her own written statement. The State rested after C.E.’s testimony. Appellant rested without calling witnesses. After the jury began deliberating, the trial court discharged a juror and replaced him with the alternate, after which the jury convicted appellant of the offense as charged. Appellant elected for the jury to assess punishment. He pled true to an enhancement allegation of a prior felony aggravated-assault conviction. The State did not call any witnesses during the punishment phase but offered into evidence a penitentiary packet reflecting the prior felony aggravated-assault conviction and a judgment reflecting a prior misdemeanor assault conviction. The jury assessed appellant’s punishment at 80 years’ imprisonment. This appeal followed. DISCUSSION Appellant raises nine points of error on appeal. The first point of error complains about the removal of a juror during deliberations on guilt. The remainder of appellant’s points of error raise evidentiary complaints about the trial court’s admission of inadmissible hearsay statements, improper opinion testimony, and inadmissible character-conformity evidence. I. Removal of Juror In his first point of error, appellant contends the trial court erred by excusing a juror, over his objection, after deliberations on guilt-innocence had begun and replacing him with the alternate juror. Following voir dire on Monday, the jury and one alternate juror were sworn. Trial began the following morning. The guilt-innocence phase concluded three days later, and the jury was sent out to deliberate Thursday afternoon. At that time, the alternate juror was conditionally released with the court’s admonition that he was still bound by the instructions of the court but was free to leave the courthouse, subject to recall if his services became necessary. Sometime after deliberations started — the record does not make clear when — the court apparently received information that one of the jurors, Mr. Brooks, had communicated with the court’s bailiff about the case. The judge brought Juror Brooks into the courtroom to inquire about the nature of any communications he might have had. During the inquiry, Brooks confirmed that he had communicated with the bailiff, someone he knew from church, and had expressed to her his feelings about sitting as a juror in the case and rendering a verdict. In response to the court’s questions, Brooks indicated that “[he wasn’t] sure” if he could follow the instructions of the court because he “would much rather be minding [his] own business at home.” When the judge asked if he could sit in judgment of another person, he answered, “No. At this moment, no.” When the court sought clarification, Brooks expressed uncertainty, stating, “I don’t feel that I know enough to really make a sound judgment in this case.” When his answers suggested that his uncertainty resulted from “going through a lot in [his own] life” at the time, the court questioned him about mental-health issues. Brooks denied any psychological problems, saying, “Well, I don’t consider them psychological problems, I think some of them might be very sound, rational arguments.” When the judge directly asked whether “situations going on in [his] life [were] creating some stress” for him, Brooks responded, “Not really.” Ultimately, Juror Brooks explained, ... The reason why I don’t want to issue a verdict, particularly a not guilty [sic] verdict, is because I feel that based on the evidence that’s been presented to us, the jury, I don’t feel that there’s enough to make me know that the guy did it. I mean, whether he did it or not, I could be about 50/50 about that, you know. So if it’s an issue of everything based on what she says, I don’t feel that that’s enough to make me feel comfortable issuing a guilty verdict just because everybody else wants to. The court confirmed with Brooks that this concern about rendering a guilty verdict was what he shared with the bailiff in his conversation with her. After Juror Brooks left the courtroom, the State asked the judge to remove him from the jury and replace him with the alternate juror pursuant to article 33.011 of the Texas Code of Criminal Procedure. The prosecutor took the position that “Mr. Brooks has some, at the very least, probably significant external problems going on that may cause him to be under some emotional duress that render him unable to continue deliberating.” She further argued that he violated the rules of the court by discussing “this case and his feelings and his comments on deliberation with a person not of his jury.” Defense counsel responded that “it’s not that [Brooks] can’t follow the orders of the Court, it’s that he doesn’t agree with the rest of the jury, and he can’t go along with them.” He pointed out that the jury had not been deliberating long and that Brooks had indicated that he could not “agree at this time.” He maintained that Juror Brooks was not disabled under the statute and that replacing him was not necessary or authorized. Before making a ruling, the trial judge questioned his bailiff. She concurred “with what Mr. Brooks said with regard to his conversation with [her]” but indicated that he was more detailed about his feelings when answering the judge’s questions. She confirmed that she knew Brooks from church as well as through other people in the community. The trial court asked her if she “ha[d] any understanding, one way or the other, of whether or not he would be of sound mind.” In response, the bailiff opined that “he is painfully shy” and that she thought they would have a “hard time” getting him back in the jury room to continue deliberations because he was “strong-willed enough that he would not go in there.” At that point, the court found that Juror Brooks was “disqualified because, among other things, his communication to someone not of his jury about the details of the case.” He further found that the communication was “not initiated or encouraged” by the bailiff. He granted the State’s request to have the alternate juror replace Juror Brooks. Defense counsel renewed his objection by moving for a mistrial, which the court denied. The judge then determined, for record purposes, the length of the bailiff’s conversation with Juror Brooks. The bailiff indicated it was “[l]ess than a minute,” explaining, “As soon as he began discussing anything that related to evidence, I put my hand on his shoulder and I said, T need you to stop right there.’ ” Defense counsel further objected to the court’s finding that Juror Brooks was disqualified. Standard of Review The trial court has discretion to determine whether a juror has become disabled and to seat an alternate juror. Scales v. State, 380 S.W.3d 780, 783 (Tex.Crim.App.2012); see Reutier v. State, 112 S.W.3d 554, 588 (Tex.Crim.App.2003). The trial judge is the sole fact-finder and judge of the credibility of the testifying juror, but the court’s decision to replace a juror with an alternate is subject to review for an abuse of discretion. Scales, 380 S.W.3d at 784. In order to support its decision, the trial court must make a finding, sufficiently supported by the record, that the juror was disqualified or unable to perform the duties of a juror. Id.; see Tex.Code Crim. Proc. art. 33.011(b). It is not the role of an appellate court to substitute its own judgment for that of the trial court, but rather to assess whether, after viewing the evidence in the light most favorable to the trial court’s ruling, the ruling was arbitrary or unreasonable. Scales, 380 S.W.3d at 784. The ruling must be upheld if it is within the “zone of reasonable disagreement.” Id. Absent such an abuse of discretion, no reversible error will be found. Id.; see Routier, 112 S.W.3d at 588. Juror Communication The trial court based its finding that Juror Brooks was disqualified, and its subsequent decision to remove him, primarily on Brooks’s communication with the bailiff. A juror must make decisions at the guilt and punishment phases using information obtained in the courtroom: the law, the evidence, and the trial court’s mandates. Granados v. State, 85 S.W.3d 217, 235 (Tex.Crim.App.2002); see also McQuarrie v. State, 380 S.W.3d 145, 152 (Tex.Crim.App.2012). Accordingly, article 36.22 of the Texas Code of Criminal Procedure prohibits conversing with the jury: “No person shall be permitted to converse with a juror about the case on trial except in the presence and by the permission of the court.” Tex.Code Crim. Proc. art. 36.22; see also Tex.R.App. P. 21.3(f) (providing that defendant must be granted new trial when juror has talked with anyone about case). The main purpose of this statutory prohibition “is to prevent an outsider from saying anything that might influence a juror.” Ocon v. State, 284 S.W.3d 880, 887 (Tex.Crim.App.2009) (quoting Chambliss v. State, 647 S.W.2d 257, 266 (Tex.Crim.App.1983) (emphasis in original)). The paramount issue is whether appellant received a fair and impartial trial; therefore, the analysis must focus on whether the juror was biased as a result of the improper conversation, not whether the juror biased an outsider. Id. If a violation is shown, the effectiveness of possible remedies will be determined in part by whether the conversation influenced the juror. Id. at 884. A violation of article 36.22 triggers a rebuttable presumption of injury to the accused. Id.; Klapesky v. State, 256 S.W.3d 442, 452 (Tex.App.-Austin 2008, pet. ref'd). To invoke this presumption, a complaining party must show a communication between a juror and an unauthorized person that involved matters concerning the case on trial. See Chambliss, 647 S.W.2d at 265-66; Klapesky, 256 S.W.3d at 452. If it is shown that the case was not discussed or that nothing prejudicial to the accused was said, then appellant has not been injured. Green v. State, 840 S.W.2d 394, 406 (Tex.Crim.App.1992), disavowed on other grounds by Trevino v. State, 991 S.W.2d 849, 853 (Tex.Crim.App.1999). Such a showing may rebut the presumption of harm. Id. Reviewing courts should consider the evidence rebutting the presumption of harm regardless of whether it was presented by the State or by the accused. Bokemeyer v. State, 355 S.W.3d 199, 203 (Tex.App.-Houston [1st Dist.] 2011, no pet.); Alexander v. State, 919 S.W.2d 756, 767 (Tex.App.-Texarkana 1996, no pet.). We hold that the record in this case does not establish an article 36.22 violation. “[T]he language of Article 36.22 establishes two speakers, with attention directed toward the outsider’s ... speaking.” Ocon, 284 S.W.3d at 885 n. 4; see Benefield v. State, 389 S.W.3d 564, 570 (Tex.App.-Houston [14th Dist.] 2012, pet. ref'd); see also Patterson v. State, 106 Tex.Crim. 553, 293 S.W. 570, 571 (1927) (op. on reh’g) (no violation of predecessor statute when juror made comment to third party and third party “made no reply to what the juror said”; court held that this was “not ‘conversing with a juror,’ ” and thus there was no presumption of injury). Here, nothing in the record suggests that the bailiff communicated anything about the case to Juror Brooks outside the presence of, or without permission from, the court. The uncontroverted evidence established that the bailiff did not discuss the case with Juror Brooks, nor did she say anything even arguably prejudicial to appellant during her conversation with the juror. Thus, any presumption of injury was rebutted by this evidence. Further, there is no indication that Juror Brooks emerged from his conversation with the bailiff with any new information about the case that created a bias for or against either side. See Ocon, 284 S.W.3d at 887. Rather, Juror Brooks merely disclosed his feelings about serving as a juror due to his concerns about the evidence, i.e., he expressed his doubts. This disclosure, while perhaps improper, was not a conversation contemplated by article 36.22. Because the conversation did not constitute an unauthorized communication with a juror, it was not grounds for the disqualification of Juror Brooks. Further, we find the remedy the trial court utilized to address Juror Brooks’s improper conduct — his removal from the jury — too extreme given the fact that the record does not reflect any bias or prejudice to either party as a result of the conversation. Inability to Perform Duties The trial court determined that Juror Brooks was disqualified because of his unauthorized communication with the bailiff “among other things.” The court did not explain what those “other” disqualifying things were. However, based on the State’s request and argument urging the replacement of Juror Brooks with the alternate juror, we presume that one of those “other things” was the court’s conclusion that Juror Brooks was unable or disqualified to perform his duties under article 33.011(b). Article 33.011(b) of the Texas Code of Criminal Procedure states that, before a jury renders a verdict regarding a defendant’s guilt or innocence, or assesses a punishment when applicable, alternate jurors “shall replace jurors who ... become or are found to be unable or disqualified to perform their duties[.]” Tex.Code Crim. Proc. art. 33.011(b). Thus, when a regular juror becomes unable or disqualified to perform his duties, Texas law requires that the juror be replaced with the alternate juror. Id.; Scales, 380 S.W.3d at 783; Romero v. State, 396 S.W.3d 136, 148 (Tex.App.-Houston [14th Dist.] 2013, pet. ref'd). The statute does not define “unable to perform,” but appellate courts have concluded that “unable” as used in article 33.011 is indistinguishable from “disabled” as used in article 36.29. See Scales, 380 S.W.3d at 783; Sneed v. State, 209 S.W.3d 782, 786-87 (Tex.App.-Texarkana 2006, pet. ref'd). The court of criminal appeals has interpreted “disability” under article 36.29 to require that a disabled juror suffer 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,” or that the juror was suffering from a condition that inhibited him from “fully and fairly performing the functions of a juror.” Scales, 380 S.W.3d at 783 (internal quotation marks omitted); see Routier, 112 S.W.3d at 588. To support its decision that a juror is disabled, the trial court must make a finding, sufficiently supported by the record, that the juror was disqualified or unable to perform the duties of a juror. Scales, 380 S.W.3d at 783. The trial court may not dismiss a juror for reasons related to that juror’s evaluation of the sufficiency of the evidence. Id. at 783-84 (citing United States v. Edwards, 303 F.3d 606, 633 (5th Cir.2002)). The record in this case does not support a finding that Brooks was unable to perform his duties as a juror, only that he was disinclined to do so. Nothing in the record indicates that his feelings hindered him from “fully and fairly performing [his] functions as a juror,” he simply had an aversion to doing so because he had doubts about the sufficiency of the evidence. Although his testimony demonstrates that he was troubled by his doubts and frustrated at potentially being the hold-out juror, at no time did Brooks indicate that he would not, or could not, deliberate further. Nothing demonstrates that he was emotionally distraught or unable to deliberate, as the State suggests. He only expressed that he was disinclined to return a guilty verdict because he found the evidence lacking. Overall, his testimony simply expressed his doubt concerning appellant’s guilt. His aversion to performing his duties as a juror stemmed from his discomfort of having a “reasonable doubt” when others on the jury, apparently, did not. However, the trial court was not permitted to dismiss Juror Brooks for reasons related to his evaluation of the sufficiency of the evidence. See id. Under these circumstances, we conclude the trial court abused its discretion in finding Juror Brooks disqualified, removing him from service, and replacing him with the alternate juror. Harm Analysis We must now address whether the erroneous removal of Juror Brooks from the jury was harmful to appellant. For purposes of this opinion, we -will assume, without deciding, that the trial court’s erroneous removal of Juror Brooks constituted statutory error and must therefore be analyzed under Texas Rule of Appellate Procedure 44.2(b). See id. at 786; Tex.R.App. P. 44.2(b). Under Rule 44.2(b), “[a]ny other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” Tex.R.App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. Scales, 380 S.W.3d at 786 (citing King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997)); Coble v. State, 330 S.W.3d 253, 280 (Tex.Crim.App.2010). The testimony of Juror Brooks indicated that the other members of the jury were seemingly in favor of conviction, whereas he was not due to his concerns about the sufficiency of the evidence proving guilt. If the jury had been allowed to continue deliberating, his uncertainty or reasonable doubt may have been resolved by further deliberations. This would have produced a verdict. Or, he may have maintained his views of the evidence and his reasonable doubt, resulting in a deadlocked jury. This would have resulted in a mistrial. See Tex.Code Crim. Proc. art. 36.31 (procedure for when jury cannot agree). Because of the error, neither possibility was allowed to occur. See Scales, 380 S.W.3d at 786-87. Given the record before us, which demonstrates that Juror Brooks considered the evidence insufficient to prove appellant’s guilt beyond a reasonable doubt and therefore felt uncomfortable rendering a guilty verdict, it appears a mistrial was the more probable of the possible outcomes. After he was replaced, the jury returned a guilty verdict, sufficiently demonstrating that the erroneous removal had “a substantial and injurious influence in determining the jury’s verdict.” See id. Thus, the error of removing Juror Brooks affected a substantial right of appellant’s. We sustain appellant’s first point of error. II. Hearsay Evidence In four points of error, appellant complains about the admission of hearsay evidence. In his second point of error, he asserts that the trial court erred in allowing Officer Preston to testify about the substance of C.E.’s written statement detailing the sexual assault. In his third point of error, appellant maintains that the trial court erred in admitting the written statements that C.E. and her mother provided to Officer Preston when reporting the assault. In his sixth point of error, appellant argues that the trial court erred in overruling his hearsay objection to an out-of-court statement concerning appellant’s alleged admission of guilt to his wife. In his seventh point of error, appellant contends the trial court erred when it admitted, as an excited utterance, C.E.’s hearsay statements to her cousin describing the sexual assault. The State argues that Officer Preston’s testimony detailing C.E.’s account of the incident, the written statements of C.E. and her mother, and Detective Carrasco’s testimony concerning appellant’s alleged admission of guilt to his wife were not objectionable hearsay because the State did not offer them for the truth of the matters asserted but rather “to explain why the witness undertook the investigative action that he undertook.” The State further maintains that C.E.’s statements disclosing the assault to B.E. constitute an excited utterance. Standard of Review We review a trial court’s ruling on the admission or exclusion of evidence for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex.Crim.App.2011). A trial court abuses its discretion only if its decision “lies outside the zone of reasonable disagreement.” Martinez v. State, 327 S.W.3d 727, 736 (Tex.Crim.App.2010); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (op. on reh’g). We consider the ruling in light of what was before the trial court at the time the ruling was made and uphold the trial court’s decision if it lies within the zone of reasonable disagreement. Billodeau v. State, 277 S.W.3d 34, 39 (Tex.Crim.App.2009). Hearsay Hearsay is a statement, other than one made by the declarant while testifying at trial, that is offered to prove the truth of the matter asserted. Tex.R. Evid. 801(d). Hearsay is inadmissible except as provided by statute or the rules of evidence. Tex.R. Evid. 802. A statement not offered to prove the truth of the matter asserted is not hearsay. Dinkins v. State, 894 S.W.2d 330, 347 (Tex.Crim.App.1995). Information Acted On The State may offer out-of-court statements in evidence without violating the hearsay rule to explain why the defendant became the subject of the investigation. See Dinkins, 894 S.W.2d at 347. “An arresting officer should not be put in the false position of seeming just to have happened upon the scene, he should be allowed some explanation of his presence and conduct.” Schaffer v. State, 777 S.W.2d 111, 114-15 (Tex.Crim.App.1989). Therefore, “testimony by an officer that he went to a certain place or performed a certain act in response to generalized ‘information received’ is normally not considered hearsay because the witness should be allowed to give some explanation of his behavior.” Poindexter v. State, 153 S.W.3d 402, 408 (Tex.Crim.App.2005). “But details of the information received are considered hearsay.” Id. The officer “should not be permitted to relate historical aspects of the case, replete with hearsay statements in the form of complaints and reports, on the ground that [he] was entitled to tell the jury the information upon which [he] acted.” Schaffer, 777 S.W.2d at 114-15. “The appropriate inquiry focuses on whether the ‘information received’ testimony is a general description of possible criminality or a specific description of the defendant’s purported involvement or link to that activity.” Head v. State, 4 S.W.3d 258, 261 (Tex.Crim.App.1999). Initially, we note that Officer Preston was a patrol officer, not an investigator. In fact, in offering his testimony, the State emphasized that his duties in this case did not include investigatory responsibilities. During direct examination, the prosecutor initiated the following exchange: Q. Now, when you’re on patrol — I mean, your duties are very different than a detective, aren’t they? Yes, ma am. t> What’s the difference, I guess? Or what do you understand that your role is when you’re on patrol versus, say, if you were, like, a detective in the case? <© My role as patrol is to be in the city as a deterrent to crime and to just patrol around and be of service. Okay. When you take a report, are you the — I guess, do you get the initial facts? & Yes, ma’am. t> Okay. Do you continue on to do any kind of in-depth investigation like a detective would do? «© Not in all cases, no. !> Okay. In these types of cases, do you generally — does the patrol officer, is he the one who continues on the investigation if you have a report of sexual assault? <© No, ma’am. > Okay. Now, in this case, can you tell the jury exactly what you did once you got to the police department? <© I arrived at the police department, I met with Rosie, spoke with her as to how I can help her. She stated her daughter had been sexually assaulted. At this point, defense counsel objected on hearsay grounds. The trial court sustained the objection. The prosecutor then averred, “I’m not offering it for the truth of the matter asserted, Your Honor, I’m just offering it to show what information he acted upon.” The trial court then impliedly overruled the hearsay objection by giving a limiting instruction to the jury before allowing the prosecutor to continue questioning. The prosecutor then continued questioning the officer about his limited role in the case: Q. And just to clarify, Officer Preston, when you’re taking a report from people, you’re just taking down what they’re telling you, you’re not going out and verifying the truth of it or not; is that right? A. Yes, ma’am. Q. Okay. So we’re going to talk about what you were told as far as just the information that you were taking down. But you, yourself, didn’t independently verify the truth of it or nontruth of it. A. No, ma’am. Later, when appellant objected to the State’s offer of the written statements of C.E. and her mother on hearsay grounds, the prosecutor responded: Judge, I’m not going to waste the Court’s time by restating everything that I’ve said with regard to that it’s not offered for the truth of the matter asserted. This officer is entitled to talk about what he acted on, what he did, what he obtained, and that’s not hearsay. It’s not a hearsay exception, it’s not hearsay in any form. The jury has been admonished now, I think by my count, at least three times that this is not being offered because— to show that it’s true, it’s being offered to show what this police officer acted upon, the information that he took and what he did afterwards. Subsequently, on redirect examination, the prosecutor again questioned Officer Preston about his limited duties: Q. [Defense counsel] asked you if you did a whole bunch of different things. But we talked about as a patrol officer, those things that he just asked you about, that’s not your job to do those things, is it? A. Not in reference to this case or these types of cases, no. Q. Okay. So when he’s asking you all these things that you didn’t do this, you didn’t do that, those were all things that you weren’t supposed to be doing, right? A. Yes, ma’am. It is difficult to discern how C.E.’s hearsay statements to the officer about the sexual assault or either of the written statements provided to the officer were “information acted upon,” as the State contends, when the record explicitly reflects that the officer did not have the duty or responsibility to act on such information, nor did he do so. Nevertheless, even assuming Officer Preston had “acted upon” the information received during his interview of C.E. or contained in the written statements he obtained, his testimony at trial provided a complete account of C.E.’s description of the sexual assault, revealing the specific details he received from C.E. The officer’s testimony is replete with “[C.E.] said ...” preceding particular facts given by C.E. His testimony was not merely a generalized description of possible criminality that explained how appellant came to be a suspect but contained specific details about the sexual assault, all of which he obtained from his interviews of C.E. and her mother and their written statements. Thus, he “provided far greater detail than was reasonably necessary to explain why” he decided to forward the case to the Criminal Investigation Division for investigation (the only action he took after receiving the information). See Langham v. State, 305 S.W.3d 568, 580 (Tex.Crim.App.2010) (detective’s representation of confidential informant’s statements provided far greater detail than was reasonably necessary to explain why police decided to investigate appellant’s residence). In the same way, C.E.’s written statement and her mother’s written statement provided specific details of the incident. They too provided more than a general description of possible criminal activity but instead gave a detailed description of appellant’s involvement in such criminal activity (his perpetration of the sexual assault). Officer Preston’s testimony and the written statements were inadmissible hearsay. All of this hearsay evidence — Officer Preston’s testimony about C.E.’s statements, C.E.’s written statement, and Rosie’s written statement — was not offered to explain how appellant became the focus of a police investigation. The hearsay evidence went far beyond the permissible general description of information received about possible criminality and instead provided specific details and descriptions of appellant’s involvement in the sexual assault. Consequently, this evidence was inadmissible, and the trial court erred in overruling appellant’s hearsay objections and admitting the evidence. Excited Utterance Excited utterances are an exception to the hearsay rule. An excited utterance is a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Tex.R. Evid. 803(2); Salazar v. State, 38 S.W.3d 141, 154 (Tex.Crim.App.2001). The exception is based on the assumption that the declarant is not, at the time of the statement, capable of the kind of reflection that would enable him to fabricate information. Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App.2005); see Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App.2003) (“The basis for the excited utterance exception is a psychological one, namely, the fact that when a man is in the instant grip of violent emotion, excitement or pain, he ordinarily loses the capacity for reflection necessary to the fabrication of a falsehood and the ‘truth will come out.’ ”). The statement is trustworthy because it represents an event speaking through the person rather than the person speaking about the event. Zuliani, 97 S.W.3d at 595; Lagunas v. State, 187 S.W.3d 503, 512 (Tex.App.-Austin 2005, pet. ref'd). For the excited-utterance exception to apply, (1) the exciting event must be startling enough to evoke a truly spontaneous reaction from the declarant, (2) the reaction to the startling event must be quick enough to avoid the possibility of fabrication, and (3) the resulting statement should be sufficiently “related to” the startling event to ensure the reliability and trustworthiness of that statement. McCarty v. State, 257 S.W.3d 238, 241-42 (Tex.Crim.App.2008) (discussing similarity between Rule 803(2) “excited utterance” exception and common law “spontaneous utterance” exception). The primary factor rendering an excited utterance reliable is the spontaneous nature of the statement. Tezeno v. State, 484 S.W.2d 374, 379 (Tex.Crim.App.1972); Mumphrey v. State, 155 S.W.3d 651, 658 (Tex.App.-Texarkana 2005, pet. ref'd). The statement must have been made before the declarant’s excitement caused by the startling event or condition has abated. Zuliani, 97 S.W.3d at 596; see, e.g., Wood v. State, 18 S.W.3d 642, 652 (Tex.Crim.App.2000) (hearsay statement properly excluded because it was separated from event it concerned by ten to twelve hours and declarant’s behavior in interim did not indicate any excitement or nervousness on declarant’s part). The key to this hearsay exception is that the statement be made without reflection and an opportunity to fabricate. Apolinar, 155 S.W.3d at 186 (examining record for evidence that declarant did not have meaningful opportunity to reflect); see Martinez v. State, 178 S.W.3d 806, 815 (Tex.Crim.App.2005) (must be shown that de-clarant had no time or opportunity to calm herself and reflect on two-day old events); Harris v. State, 133 S.W.3d 760, 772 (Tex.App.-Texarkana 2004, pet. ref'd) (whether declarant had opportunity to reflect and fabricate was dispositive determination). The startling event need not be the original offense but can be a subsequent event, so long as it is itself startling or shocking. Harvey v. State, 123 S.W.3d 623, 630 (Tex.App.-Texarkana 2003, pet. ref'd); see McCarty, 257 S.W.3d at 240 (“[U]nder the excited-utterance exception, the startling event may trigger a spontaneous statement that relates to a much earlier incident.”). Further, the requisite excitement that provokes or induces the spontaneous statement may be a condition, such as physical pain, fear, or mental anguish. Salazar, 38 S.W.3d at 154. However, a shocking or startling event or condition must trigger the utterance. See Harvey, 123 S.W.3d at 630; see also Sellers v. State, 588 S.W.2d 915, 918-19 (Tex.Crim.App.1979). We review a trial court’s determination of whether evidence is admissible under the excited-utterance exception to the hearsay rule for an abuse of discretion. Wall v. State, 184 S.W.3d 730, 743 (Tex.Crim.App.2006); Lagunas, 187 S.W.3d at 512. Factors we may consider in evaluating whether a statement qualifies as an excited utterance include the length of time between the occurrence and the statement, the characteristics of the declarant, whether the statement is made in response to a question, and whether the statement is self-serving. Apolinar, 155 S.W.3d at 187; Lagunas, 187 S.W.3d at 512. The ultimate inquiry is whether the emotions, excitement, fear, or pain of the event or condition still dominated the declarant at the time of the statement. Apolinar, 155 S.W.3d at 186-87; Lagunas, 187 S.W.3d at 512; see Coble, 330 S.W.3d at 294. According to B.E.’s testimony, she and C.E. were in her room when her sister came into the room and mentioned appellant’s name in conversation. C.E. then commented that “she didn’t like him (appellant)” and asked B.E., “Can I tell you something?” B.E. testified that C.E. expressed that “she was scared to tell anybody,” but she was able to convince C.E. to tell her what happened. When the prosecutor asked B.E. whether C.E. “seem[ed] to be under the emotions of what had happened to her” when she described the assault, B.E. answered affirmatively, indicating that she knew C.E. was upset because she “could hear it in her voice that she was shaky” and she saw tears coming down C.E.’s face. While there is no question that C.E. was emotional when she told her cousin about the assault, the test is whether, at the time of the utterance, C.E. was under domination of the emotions triggered by a startling event, either the original sexual assault or, alternatively, the mention of appellant’s name. We conclude that C.E.’s disclosure of the assault to her cousin does not qualify as an excited utterance. While the original assault was undoubtedly shocking, the record does not support that C.E. was still, three or four months later, dominated by the excited state produced by the attack. Nor does the record reflect that the mention of appellant’s name was the type of startling or shocking event contemplated by the excited-utterance rule. See, e.g., Barnes v. State, 165 S.W.3d 75, 81 (Tex.App.-Austin 2005, no pet.) (11-year-old victim’s report of sexual abuse to police officer not excited utterance because, although testimony established that victim was crying and “very upset” during description of sexual abuse, there was no evidence that her emotional state was due to stress of excitement caused by some startling event or condition because sexual abuse happened five years earlier and there was no evidence of additional startling event that triggered statements to officer); Harvey, 123 S.W.3d at 631 (outcry six years after sexual assault not shown to be excited utterance even though declarant was “very upset about it, crying” when, as an adult, she “broke down” and told her boyfriend details of assault when answering his questions about paternity of her son). C.E.’s statements were not made “suddenly” or “immediately” after the startling event, which we assume, for purposes of analysis, was the sexual assault. She did not blurt out the statements, but instead made them after seeking permission from her cousin to share information with her. She also prefaced them by indicating that she was scared to tell because, according to B.E., “she felt like if she would have told somebody, then the whole family would hate her even though it’s not her fault.” Also, C.E. was fifteen years old when she told her cousin about the sexual assault. These circumstances surrounding C.E.’s statements — her age, the delay, her reluctance, and her contemplation of consequences — all weigh against the spontaneity requirement for the excited-utterance exception. See Apolinar, 155 S.W.3d at 186 (excited utterance based on assumption that at time of statement, de-clarant is not capable of kind of reflection that would enable her to fabricate information). When the exception is expanded beyond utterances made immediately or soon after exposure to the startling event or condition, “prevarication becomes a significant possibility.” See David F. Binder, Trial Practice Series: Hearsay Handbook § 9.7 (4th ed. 2012). “Stress and prevarication are not mutually exclusive.” Id. Emotions, even strong ones, do not necessarily demonstrate the lack of time or opportunity to contrive or misrepresent information. C.E.’s disclosure to her cousin was a narrative of a painful event, not an excited utterance. See Glover v. State, 102 S.W.3d 754, 764 (Tex.App.-Texarkana 2002, pet. ref'd). Her delay in disclosing the assault, her reluctance to tell as indicated by seeking permission to share “something” with her cousin, her expression of concern about the family’s reaction, and her age support our conclusion that, at the time of the statements, C.E. had had the time, opportunity, and capacity to reflect before telling her cousin about the sexual assault. Thus, C.E.’s statements did not qualify as an excited utterance and therefore do not fall within this exception to the hearsay rule. Accordingly, we conclude that the trial court erred in admitting C.E.’s hearsay statements through her cousin’s testimony. Appellant’s Alleged Admission In his sixth point of error, appellant asserts that the trial court erred in admitting Detective Carrasco’s testimony concerning appellant’s alleged admission of guilt to his wife. Preservation of error is a systemic requirement on appeal. Ford v. State, 805 S.W.3d 530, 532 (Tex.Crim.App.2009). A reviewing court should not address the merits of an issue that has not been preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473-74 (Tex.Crim.App.2010) (citing Ford, 305 S.W.3d at 532). To preserve an issue for appellate review, a party must timely object, stating the specific legal basis for the objection. Tex. R.App. P. 33.1(a)(1). Further, with two exceptions that do not apply here, a party must continue to object each time the objectionable evidence is offered. Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App.2003). The State introduced evidence about appellant’s purported admission of guilt to his wife during direct examination of the detective: Q. Well, let me ask you this: Did you receive any information on the 29th that seemed to corroborate the fact that this defendant had had intercourse with [C.E.]? A. Yes, ma’am, I did. Q. And was that, by your understanding, an admission that the defendant had made to his wife? A. Yes, ma’am. At that point, appellant objected on hearsay grounds. The trial court overruled the objection “under the circumstances.” Later, on redirect, the prosecutor asked Detective Carrasco, Q. And we had talked earlier about the fact that this defendant had actually corroborated — without getting into the statement that she made — but that this defendant corroborated to his wife that this actually did occur, correct? A. Correct. Appellant did not object. Thus, although appellant initially objected, he did not continue to object to the evidence of his alleged admission to his wife. Therefore, he did not preserve this complaint for appeal. See Martinez, 98 S.W.3d at 193. Accordingly, we overrule appellant’s sixth point of error. Harm Analysis The erroneous admission of evidence is non-constitutional error. Kirby v. State, 208 S.W.3d 568, 574 (Tex.App.Austin 2006, no pet.); see Casey v. State, 215 S.W.3d 870, 885 (Tex.Crim.App.2007). Non-constitutional error requires reversal only if it affects the substantial rights of the accused. See Tex.R.App. P. 44.2(b); Barshaw v. State, 342 S.W.3d 91, 93 (Tex.Crim.App.2011). We will not overturn a criminal conviction for non-constitutional error if, after examining the record as a whole, we have fair assurance the error did not influence the jury, or influenced the jury only slightly. Barshaw, 342 S.W.3d at 93; Kirby, 208 S.W.3d at 574. In assessing potential harm, our focus is not on whether the outcome of the trial was proper despite the error but on whether the error had a substantial or injurious effect or influence on the jury’s verdict. Barshaw, 842 S.W.3d at 93-94. We review the entire record to ascertain the effect or influence on the verdict of the wrongfully admitted evidence. Id. at 93; see Coble, 330 S.W.3d at 280 (in conducting harm analysis “we examine the entire trial record and calculate, as much as possible, the probable impact of the error upon the rest of the evidence”). We consider all the evidence that was admitted at trial, the nature of the evidence supporting the verdict, the character of the alleged error, and how the evidence might be considered in connection with other evidence in the case. Barshaw, 342 S.W.3d at 94. We may also consider the jury instructions, the parties’ theories of the case, closing arguments, voir dire, and whether the State emphasized the error. Id.; Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App.2000). We must reverse a conviction for non-constitutional error if we have “grave doubt” about whether the result of the trial was free from the substantial influence of the error. Barshaw, 342 S.W.3d at 94. “ ‘Grave doubt’ means that ‘in the judge’s mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.’” Id. (quoting Burnett v. State, 88 S.W.3d 633, 637-38 (Tex.Crim.App.2002)). “[I]n cases of grave doubt as to harmlessness the [appellant] must win.” Id. The erroneously admitted hearsay evidence in this case was not innocuous. C.E.’s hearsay statements detailing the sexual assault were erroneously admitted in four separate instances, over objection, before C.E. testified, in both oral and written form. The State emphasized the hearsay statements throughout trial, asking several witnesses if C.E.’s statements were consistent with each other. In addition, the State referred to C.E.’s hearsay statements, and the consistency among them, in closing arguments: “Consistency over time is a big deal. She was consistent with her oral statement to [Officer Preston] and her written statement.” The State also referred to Rosie’s written statement in closing argument and encouraged the jury to look at it during deliberations. The State suggests that any error in admitting C.E.’s hearsay statements was not harmful because they were admitted with a limiting instruction. We disagree. An instruction that instructs a jury to consider inadmissible evidence for a limited purpose still instructs a jury to consider inadmissible evidence. Jackson v. State, 320 S.W.3d 873, 888 (Tex.App.-Texarkana 2010, pet. ref'd) (citing Bjorgaard v. State, 220 S.W.3d 555, 562 (Tex.App.-Amarillo 2007), pet. dism’d, improvidently granted, 253 S.W.3d 661 (Tex.Crim.App.2008)). The complained-of hearsay evidence should not have been considered for any purpose. The limiting instruction does not mitigate harm or render the error harmless. We also note that while initially admitted for limited consideration, the written statements were subsequently admitted “for all purposes.” The State farther asserts that any error in admitting C.E.’s hearsay statements (through the officer’s testimony, her cousin’s testimony, or her 'written statement) or Rosie’s written statement was harmless because the witnesses ultimately testified at trial. Again, we disagree. First, we reject the proposition that the subsequent testimony of a declarant automatically renders the earlier improper admission of a hearsay statement harmless. If that were the case, the prohibition on hearsay evidence would cease to exist in any meaningful way, as its operation would be dependent on whether a declarant testifies. Second, while it is true that error in the admission of evidence may be rendered harmless when substantially the same evidence is admitted elsewhere without objection, see Anderson v. State, 717 S.W.2d 622, 628 (Tex.Crim.App.1986) (“Inadmissible evidence can be rendered harmless if other evidence at trial is admitted without objection and it proves the same fact that the inadmissible evidence sought to prove.”), we do not believe this case presents such a situation. The doctrine of harmless error the State relies on is based on the concept of waiver. See Leday v. State, 983 S.W.2d 713, 717-18 (Tex.Crim.App.1998) (explaining that Texas applies “futility rule,” meaning that despite trial court’s ruling that evidence is admissible, party must keep making futile objections on pain of waiver); Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App.1991) (“[I]t is well settled that an error in admission of evidence is cured where the same evidence comes in elsewhere without objection; defense counsel must object every time allegedly inadmissible evidence is offered.”). The premise is that because the defendant failed to object to the inadmissible evidence at some point, he waived the right to complain about its admission elsewhere. Here, however, appellant objected to the admission of C.E.’s hearsay statements throughout trial. The only time evidence of similar facts was admitted without objection was through C.E.’s own testimony. However, her direct testimony about the sexual assault was not objectionable evidence, only her hearsay statements about it were. Thus, allowing her direct testimony to come in “without objection” did not constitute a waiver of the objection to her hearsay statements. We further reject the State’s argument about the mitigating effect of witnesses testifying at trial, because Rosie’s subsequent testimony at trial did not render the erroneous admission of her written statement harmless. Other than appellant’s identity as the perpetrator, she did not testify to the contents of her statement, so the same information did not come in through her testimony. This case was, as these cases typically are, a “he said, she said” case. See Hammer v. State, 296 S.W.3d 555, 561-62 (Tex.Crim.App.2009) (“Sexual assault cases are frequently ‘he said, she said’ trials in which the jury must reach a unanimous verdict based solely upon two diametrically different versions of an event, unaided by any physical, scientific, or other corroborative evidence.”). The only direct evidence o