Bocanegra v. State (519 S.W.3d 190, 2017)

DISSENTING OPINION

SUE WALKER, JUSTICE

I.Introduction

A jury found Appellant Calub Bocanegra guilty of the offense of aggravated sexual assault of a child younger than fourteen years of age. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2016). Because I disagree with the Majority Opinion’s conclusions that the evidence is insufficient to support Bocanegra’s conviction and the jury’s rejection of Bocane-gra’s medical-care defense, I am compelled to dissent.

II. Failure to Review All op the Evidence Supporting Bocanegra’s Conviction in the Light Most Favorable to the Jury’s Verdict

The Majority Opinion fails to review all of the evidence in the light most favorable to the verdict. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Instead of reviewing the evidence, the Majority Opinion crafts its own unique procedure; the Majority Opinion sets forth the facts recited by the State in its appellate brief in response to Bocanegra’s fourth issue and then spends forty-six pages examining the words used by the State in its brief “to determine which of the State’s assertions are supported by the record.” The Majority Opinion notes any word used in the State’s brief that differs from the word used by the witness in the record and, using dictionary definitions and interposing possible innocent inferences from the facts, concludes that a reasonable juror could draw no inferences supporting Bocanegra’s guilt from the evidence and that the only evidence supporting Bocanegra’s conviction is Amy’s outcry. In analyzing whether Amy’s outcry- is sufficient to support Boca-negra’s conviction, the Majority Opinion explains that not “just any outcry will do” and holds this one insufficient because it “puts every parent, grandparent, sibling, daycare worker, or other caregiver of any kind at risk of being imprisoned for performing a basic and necessary function in the care of a child.” Although purporting to apply a Jackson v. Virginia sufficiency standard of review, in reality, the Majority Opinion fails to consider all of the evidence in the light most favorable to the jury’s verdict; instead, the Majority Opinion sets forth its own view of the evidence and then explains the Majority’s stance on why it would be unreasonable for the jury to view the evidence differently.

III. Bocanegra Admitted All of the Elements of the Offense

The Majority Opinion fails to recognize that the medical-care defense is a defense of confession and avoidance; thus, by offering evidence supporting, by requesting, and by obtaining a medical-care defense instruction, Bocanegra admitted every element of the offense but claimed his admitted, otherwise-criminal conduct of penetrating the sexual organ of then four-year-old Amy by inserting his finger was justified based on the provision of medical care. See, e.g., Villa v. State, 417 S.W.3d 455, 462 (Tex. Crim. App. 2013) (“The medical-care defense is one of confession and avoidance. As such, a defendant claiming entitlement to an instruction on the medical-care defense must admit to each element of the offense, including both the act and the requisite mental state.”); Cornet v. State, 417 S.W.3d 446, 451 (Tex. Crim. App. 2013) (Cornet II) (explaining that “[w]hen the defensive evidence does no more than attempt to negate an element of the offense, a defendant is not entitled to a defensive instruction on any defense subject to the confession-and-avoidance doctrine”); Cornet v. State, 359 S.W.3d 217, 225 (Tex. Crim. App. 2012) (Cornet I) (holding that medical-care defense does not negate any element of the offense, including culpable intent; it only excuses what would otherwise constitute criminal conduct).

Bocanegra testified that when he applied cream to Amy’s rash, he applied the cream “[e] very where where, I guess, where the pee made contact. I guess on her inner thighs almost to her waist, you know, on her ‘cookie;’ vagina, you know. I—Everywhere.” This testimony by Bocanegra constitutes evidence that he penetrated Amy’s female sexual organ and was sufficient to entitle Bocanegra to an instruction on the medical-care defense. See Villa, 417 S.W.3d at 462 (holding that reasonable juror could infer that appellant’s testimony—that he had applied Desitin to the red area outside the vagina and that he had “touched the genitals of this little girl”— was an admission that appellant had contact with victim’s labia minora and constituted penetration of her sexual organ, thus entitling appellant to an instruction on the medical-care defense); Cornet I, 359 S.W.3d at 226 (“As for ‘admitting’ conduct under the doctrine of confession and avoidance, it is sufficient that the defendant point to defensive evidence, originating in his own statements,' such that a trier of fact could reasonably infer that each element of the offense has been satisfied.”).

Because the medical-care defense is one of confession and avoidance, the Majority Opinion’s holding—that the evidence is insufficient to support the elements of the offense of aggravated sexual assault but that the evidence is sufficient to support the medical-care defense—is both irreconcilable and contradictory to the law.

IV. Acceptance or Rejection of Bocane-gra’s Medical-Care Defense Was with-' in the Sole Province of the Jury ■

In holding that the evidence was “insufficient to support .,. rejection of the med-ieal[-]care defense beyond a reasonable doubt[,]” the Majority Opinion fails to defer to the jury’s resolution of credibility determinations as mandated by Jackson v. Virginia. See 443 U.S. at 319, 99 S.Ct. at 2789; Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (stating that “reviewing court is required to defer to the jury’s credibility and weight determinations because the jury is the sole judge of the witnesses’ credibility and the weight, to be given their testimony”). The jury sent out ten notes during .its guilt-innocence deliberations. The notes reflect that before reaching its decision to reject Bocanegra’s medical-care defense, the jury requested some of the most pertinent evidence—including the forensic investigator’s testimony about the description provided by Amy’s mother Mandy concerning what had happened to Amy, the exact outcry statement, the demonstration by the SANE of- how Amy had showed her on her fingers that Bocanegra had penetrated her sexual organ, and the SANE’s credentials. And ultimately, the jury was free to disbelieve Bocanegra’s testimony that his penetration of Amy’s sexual organ was not of a sexual nature and was performed as medical care. See, e.g., Browne v. State, 483 S.W.3d 183, 195 (Tex. App.—Austin 2015, no pet.) (stating that jury’s decision showed that it “clearly .,. did not believe” appellant’s testimony that he had touched the victim’s sexual organ only as a caretaker).

Instead of relying on the credibility decision reached by the jury—to disbelieve Bocanegra’s testimony that his conduct in penetrating Amy’s sexual organ was not of a sexual nature and that it was instead performed as medical care—the Majority Opinion substitutes its own credibility determination (that Bocanegra is credible) for the jury’s credibility determination (that Bocanegra is not credible) and holds the evidence' insufficient to support the jury’s rejection of Bocanegra’s medical-care defense. But see Isassi v. State, 330 S.W.3d 633; 638 (Tex. Crim. App. 2010) (“This ‘ Court may not re-evaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the factfinder”); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009) (recognizing appellate courts are ill-equipped to weigh the evidence reflected in a cold record and must ask only whether any rational trier of fact could have found essential elements beyond a reasonable doubt, not whether it believes that the evidence established guilt beyond a reasonable doubt). In short, the Majority Opinion holds that the jury was required to believe Bocanegra’s testimony that when he penetrated Amy’s “ ‘cookie;’ vagina, you know,” he was providing medical care.

V. Conclusion

Based on the evidence presented at trial, when reviewed in its entirety in the light most favorable to the jury’s verdict, any rational trier of fact could have found beyond a reasonable doubt that Bocanegra intentionally or knowingly caused the penetration of the sexual organ of Amy, a child who was younger than fourteen years of age, by inserting his finger into her sexual organ and also could have found beyond a reasonable doubt against Boca-negra on his medical-care defense. See Saxton, 804 S.W.2d at 914; Williamson v. State, 356 S.W.3d 1, 15, 17 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd) (holding evidence sufficient to support conviction for serious bodily injury to a child younger than fifteen years of age and holding evidence sufficient to reject medical-care defense).

For the reasons set forth above, I respectfully dissent; I would affirm the trial court’s judgment.

APPENDIX

MEMORANDUM OPINION

I. Introduction

In the last of his four points, Appellant Calub Bocanegra appeals his conviction for aggravated sexual assault of a child younger than fourteen years of age, challenging the sufficiency of the evidence to support his conviction and the jury’s rejection of his medical-care defense. See Tex. Penal Code Ann. § 22.011(d) (West 2011), § 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2016). The jury assessed Bocanegra’s punishment at the minimum punishment available—25 years’ confinement. Because we sustain his fourth point, we reverse the trial court’s judgment, enter a judgment of acquittal, and do not reach his remaining three points. See Tex. R. App. P. 47.1.

II.General Overview

This ease turns on the difference between reasonable inference and speculation, see Hooper v. State, 214 S.W.3d 9, 15-17 (Tex. Crim. App. 2007), and the question presented here is whether, under the facts of this case, a four year-old’s statement—that her daddy touched her “cookie” and that it hurt her tummy, along with an abstract demonstration that some sort of penetration may have occurred— was sufficient evidence to support a conviction for aggravated sexual assault of a child. We hold that it was not.

In arriving at this conclusion, we are mindful that we cannot expect child victims to testify with the same clarity and ability as is expected of mature and capable adults, lest we condone, if not encourage, the practice of preying upon the most innocent and vulnerable in. our society in order to evade successful prosecution. See Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990). However, this, important public policy must be balanced against an equally important, fundamental tenet that a criminal conviction must be established by proof beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361-62, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970). These cases often present special problems with regard to evidence and proof, but each must be decided under the standard of review set out below and on its own particular facts. See Villalon v. State, 739 S.W.2d 450, 454 (Tex. App.—Corpus Christi 1987), rev’d on other grounds, 791 S.W.2d at 131-32. With these concerns in mind, we conduct a thorough review of the entire record in considering the State’s factual allegations, as set forth in detail in this opinion, in order' to apply the proper standard of review.

III.The Statutes

Bocanegra was charged with having intentionally or knowingly caused the penetration of the sexual organ of Amy, a child younger than fourteen years of age, by inserting his finger into her sexual organ. See. Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B); Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (stating that in a sufficiency review, the court compares the elements of the crime as defined by the hypothetically correct jury charge—the law as authorized by the indictment—to the evidence adduced at trial). It is a defense to prosecution that the charged conduct consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and the mouth, anus, or sexual organ of the actor or any third party. Tex. Penal Code Ann. § 22.011(d).

IV.Standard of Review

In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to .weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id., 99 S.Ct. at 2789; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, — U.S. —, 136 S.Ct. 198, 193 L.Ed.2d 127 (2015).

The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014); Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we determine whether the necessary inferences are reasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict. Murray, 457 S.W.3d at 448. We must presume that the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution. Id. at 448-49. Notwithstanding the deference we must afford the trier of fact in weighing the evidence, however, the Supreme Court directs us that a mere modicum of evidence cannot meet constitutional muster to support a guilty finding beyond a reasonable doubt. Jackson, 443 U.S. at 320, 323-24, 99 S.Ct. at 2789, 2791-92.

The standard of review is the same for direct and circumstantial evidence cases; circumstantial evidence is as probative as direct evidence in establishing guilt. Dobbs, 434 S.W.3d at 170; Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014). Likewise, hearsay may be sufficient to support a conviction in some instances even when the declarant testifies at trial and denies the crime occurred. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (holding that “the complainant’s recantation of her videotaped testimony did not destroy its probative value”); Fernandez v. State, 805 S.W.2d 451, 456 (Tex. Crim. App. 1991) (“[I]t was up to the [factfinder] to decide which version of [the declarant’s] story it believed.”).

In a case such as this, the testimony of a child sexual abuse victim alone can be sufficient to support a conviction for aggravated sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07 (West Supp. 2016) (“Testimony in Corroboration of Victim of S.exual Offense”);, see also Bazanes v. State, 310 S.W.3d 32, 40 (Tex. App.—Fort Worth 2010, pet. ref'd). Corroboration of the victim’s testimony by medical or physical evidence is not required. Cantu v. State, 366 S.W.3d 771, 776 (Tex. App.—Amarillo 2012, no pet.).

With regard to Bocanegra’s medical-care defense under section 22.011(d), in evaluating the sufficiency of the evidence, we' determine whether after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact would have found beyond a reasonable doubt that Bocanegra committed the essential elements of aggravated sexual assault of a child and also would have found against Bocanegra on the medical-care defense beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991) (citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789). While the credibility determination of defensive evidence is solely within the jury’s province and the jury is free to accept or reject the defensive evidence, a jury’s rejection of a defensive theory must be reasonable, and the defensive theory must be rejected beyond a reasonable doubt. Id.

V. Evidence at Trial

Although trial spanned four calendar days, the presentation of the evidence did not begin until sometime after 3:00 p.m. on the first day, only lasted from 2:00 p.m. until 3:25 p.m. on the second day, and was concluded well before noon on the third day. Indeed, the jury spent longer deliberating, which occurred during the third and fourth days, than they did listening to the evidence, which was presented as follows:

Amy was born in 2008. She had just turned four years old at the time these allegations arose, and she was almost seven years old at the time of the trial. At trial, she could not remember any of the events relating to the charge of aggravated sexual assault.

Amy was one and a half years old when her mother Mandy became romantically involved with Boeanegra while they were teenagers in high school. At some point during high school, Mandy and Boeanegra began living together, first at his parents’ home, and then later at her mother’s home. Although Boeanegra, a young man who had never before raised a child, was initially uncomfortable with the task of changing diapers, eventually he joined in the parental functions of bathing Amy, feeding her, and changing her diapers. Other family members also assisted as caregivers to Amy by bathing her, feeding her, and changing her diapers.

Amy suffered from chronic irritation and diaper rashes that were caused by urinating on herself. Mandy consulted Amy’s pediatrician on numerous occasions about the problem, and the pediatrician prescribed a cream to be applied to the affected areas. Mandy testified as to how she, Boeanegra, and other family members would apply the cream by hand, using their fingers to spread the ointment all over Amy’s genital area:

A.Every time we had to reapply it we had to make sure it was clean to prevent it from getting even worser [sic].

Q. All right. When you say—Can you just describe what you mean when you say you had to make sure the area was clean. You can be very specific about what you needed to do with your child to clean her.

A. Any parent that has a girl knows that you have to make sure you clean between the lips of the vagina area to make sure because whenever you apply a cream it creases up, and if you just leave it there it can cause an infection.

Q. So after you would clean her, then how would you put the cream on?

A. You would apply it with your two—your two fingers, your hand.

Q. Like all over the genital area, you know—

A. It usually would—Because of the diaper, it would be on her, you know, the inside of her thighs. Anywhere from, like, the top to the bottom. Sometimes it would even spread towards, you know, her butt. So sometimes we just put it all over the place just to prevent it from spreading even worse.

Q. Was it ever on the lips of her vagina?

A. Yes.

Q. Was it ever inside? You put the medicine inside?

A. Yes.

Q. Okay. And why did you do that?

A. Because it was either irritated from her peeing herself and—well, when we transferred her to underwear and she wouldn’t tell us. Or she was in daycare and they wouldn’t change her immediately because they wouldn’t notice ....

According to Mandy, Amy continued to wet herself and experience rashes—necessitating the application of cream on the affected areas—through the time of trial, by which time Amy was in the second grade. In Mandy’s opinion, Amy’s problem was caused by her choosing to continue to play rather than to stop and go to the bathroom, and Amy would explain to her care-givers when it happened that she “[didn’t] remember [she] had to go pee.”

According to Mandy, because the cream was applied to an “irritated” and “sensitive” area, sometimes Amy would flinch when it was applied, signaling that she was uncomfortable and that it hurt her. Despite the discomfort Amy experienced during the process, however, Mandy testified that it still had to be done.

After they graduated from high school, Mandy and Bocanegra moved to their own apartment. A year later, Mandy gave birth to their son. A few months after them son’s birth, Bocanegra and Mandy separated, and Bocanegra moved out. Shortly thereafter, Mandy married another man.

In December 2012, four or five months after Mandy and Bocanegra separated, Mandy was sitting on the bed brushing then-four-year-old Amy’s hair, and Amy told her mother that she was afraid to stay in her room. This, according to Mandy, was not something new, and Amy’s attempts to avoid sleeping in her room continued even through trial, two years later. According to Mandy, when she asked Amy why she was scared to stay in her room at night, Amy offered various reasons. Amy would say, “[e]ither it was dark or that— Anything that would get her out of her room to sleep with us.” But on this occasion, when Mandy asked Amy why, Amy said that her dad had touched her “cookie” and that “it hurt [her] tummy.”

Due to the dynamics of her personal relationship with Bocanegra at that time, having separated from him and married another man, Mandy testified that her first reaction was one of shock and anger. As Mandy explained at trial, she had “just got married and [she and Bocanegra] had just separated ... and then this came.... And then for her to tell me that, it’s—it was a lot.” A day or two later, Mandy consulted with her mother about the situation, and then she took Amy to Cook Children’s Hospital. Cook Children’s told Mandy that she needed to file a police report before they would examine Amy, so she took Amy to the police station, and the police took a report, scheduled a medical examination of Amy, and contacted Alliance for Children.

Mandy ultimately provided a written statement to the police that was not admitted into evidence at trial. At trial, Mandy agreed that in the statement she had stated that during the previous five or six months, Amy was urinating on herself, did not want to sleep by herself, and became upset when Mandy left her alone with Bocanegra, but she also clarified in her testimony that Amy’s fear of sleeping in her own room and wetting herself were recurring problems that were not limited to just the five or six months prior to the allegation.

Joy Hallum, who was employed as a forensic interviewer with the Alliance for Children at the time, interviewed Amy. Hallum provided a great deal of testimony regarding her background, the general concepts, principles, and goals regarding child forensic interviews, and the specific procedures she employed while interviewing Amy.

Hallum’s testimony was limited to outcry statements related to indecency with a child, the second count brought against Bocanegra, in which the State alleged that he touched Amy’s breasts. The jury acquitted Bocanegra of the indecency charge. Nevertheless, we consider Hallum’s observations of Amy and Amy’s interactions with her during this interview in considering the combined and cumulative force of the evidence as a whole. In this regard, Hallum testified as follows:

Q. And did Amy make a disclosure to you of sexual abuse?

A. She did.

Q. What did she tell you with regard to her—the fondling?

A. The fondling of?

Q. Her breasts.

A. Her breasts. When asked if anyone had ever touched—she identified the breasts of her body as her “boobies,” and asked if anyone ever touched her there she said “yes.” When I asked who, she had identified [Bocanegra].

Q. Did she also call [Bocanegra] “daddy”?

A. She did.

Q. You testified earlier that she— Amy reported some type of sexual abuse to you?

A. Yes

Q. Okay. And you asked Amy what position she was in when this happened to her; is that correct?

A. Yes, ma’am.

Q. Okay. And did Amy answer that question?

A. Yes, she did.

Q. And did she also demonstrate what type of position she was in?

A. Yes, she did.

Q. Okay. And she did that with her body; is that correct?

A. That is correct.

Q. And then later on you provided her with an anatomical doll; is that correct?

A. Correct.

Q. And you asked her to position the doll in the same position she was in when she was allegedly touched by her father, correct?

A, Correct.

Q. And Amy was—did not put the doll in the same position, correct?

A. Correct.

Q. And after she put the doll in a different position than what she demonstrated and told you earlier, she made you aware that she had not told the truth earlier; isn’t that correct?

A. That’s correct.

Q. ... Now, you report—You stated earlier that she reported sexual abuse. What was the difference? If someone was to state they were touched, how do you develop that into being sexual—or come to the conclusion that it was sexual abuse?

A. Anytime a child tells me that they are being touched on any private part of their body, whether it be their breasts or vagina or buttocks, or anytime they’re being made to touch someone else on their—their—their genitals, that is considered sexual abuse.

Q. Thank you. But in this particular situation there is no indication that Amy was touching anybody else on their genitalia, just to be clear?

A. Correct.

Q. Okay. Did you ask if anybody was present?

A. Yes,

Q. Were you made aware that someone other than the perpetrator was present at the time?

A. Yes.

Q. Okay. And Amy told you that, correct?

A. Correct.

Q. Okay. And you also asked Amy if this touching was made to her skin or her clothes; is that correct?

A. Correct.

At trial Hallum related no additional information about the contents of Amy’s statements—verbal or nonverbal—during the interview, either on the subject of any alleged abuse or any unrelated subject. She did testify as to Amy’s age and demeanor, describing Amy as “very energetic” and “developmentally on target,” and added that Amy “was a very young four-year-old” who possessed “some sensory [sic] and details about what was going on.”

Despite the fact that Amy had admitted to not telling the truth at some point in the interview and that Amy indicated that “someone other than the perpetrator” was present in the room when the alleged abuse occurred, Hallum indicated that she had no “concerns” about the child’s interview. Amy’s interview was videotaped, but the videotape was not played to the jury or admitted into evidence, and it is not a part of this record.

Brenda Crawford, a certified sexual assault nurse examiner at the Child Advocacy Research Evaluation (CARE) Center at Cook Children’s, testified that she obtained Amy’s medical history from Mandy and performed a physical exam on Amy in January 2013. Amy’s exam produced no findings of sexual abuse, which Crawford testified was common, given the time frame involved and the type of abuse alleged.

As with Hallum, Crawford testified at length regarding her background, the genera! concepts, principles, and goals regarding CARE exams, and the specific procedures she employed while conducting her examination of Amy. However, with régard to the actual substance of what Amy said or demonstrated during, the exam regarding the allegations of abuse, Crawford testified only as follows:

Q. Okay. And did you ask Amy what she called specific body parts?

A. Yes. Amy called her vaginal area “cookie.”

Q. Okay. And—and how did you know that was her vaginal area that she was referring to?

A. We have—with children that age, we have dolls that we use for—to show certain parts of the body.

Q. And so when you referred to the vaginal area, she called that a “cookie”?

A. Correct.

Q. Okay, .And did you take a statement for Amy. or from Amy?

A. I did.

Q. So, Ms. Crawford, what statement did Amy make concerning being sexually abused? ■

A. ... when I meet with a patient, I always say, “Do you know why you’re here?” Sometimes they do, sometimes they don’t. I say, “I’m a nurse and I’m here to make sure that your body is healthy, and so we are going to”—we pinpoint the—identify different parts of the body, which, as I said, she named “cookie.” And so she said verbatim, “My dad,” I asked her what her dad’s name is. She said, “Cal[u]b touched my cookie,” and she described pain with that.

Q. And did Amy demonstrate what she meant by touched my “cookie”?

A. Yes, she did. We have specific questions that we ask patients and she— developmental she was unable to answer these specific questions so for my clarification I said “Okay, Amy, so let’s say this is your ■ “cookie” right here, show me with your finger how your dad touched your “cookie” and so she demonstrated penetration.

Q. All right. And for purposes of the record, Ms. Crawford, are you putting, on one hand, your index finger and your middle finger together?

A, That’s correct.

Q. To kind of symbolize the female sexual organ?

A. That’s correct, sir.

Q. And exactly how did Amy demonstrate her dad touched her “cookie?”

A. She took her finger and she penetrated between .the fingers.

Q. And did she tell you whether or not that hurt?

A. Yes. I asked her if it hurt and she described pain with that,.

Q. Did Amy tell you how many times she was sexually abused?

A. She said it happened one time.

Q. Okay. And was she able to tell you where the abuse occurred?

A. Yes, sir. She- said it happened at the alleged perpetrator’s home.

Q. Okay. Now, you said that she said, this is exactly what she said, “Daddy touched my cookie,” right?

A. Verbatim she said, “My dad”—I asked her what-her dad’s name was, she said, “Cal[u]b touched- my cookie,” yes, ma’am.

Q. When you did the demonstration, the way that you understood it, the—her finger did not go any further than the labia, [i]t did not go into the vaginal canal, correct?

A. Well, I can’t answer that because, once again, we are talking about a four-year-old and sometimes even as an adult, you know, you’re in a traumatic— you’re talking to a stranger about a traumatic event in your life and you forget details so all I wanted to know was, was that on the outside of the genitalia or on the inside, and she demonstrated—she put her finger between my two fingers.

Q. So you are not testifying that he put his finger in her vaginal orifice at all, correct?

A. Well, I’m a sexual assault nurse examiner, I’m just testifying on my medical exam and my medical protocol and what she said to me.

Q. Again, you’re not testifying—you cannot—not—And you are not testifying that he put his finger in her vaginal orifice, correct?

A. Well, what I’m saying is she did demonstrate—even though it goes through the labia majora, it’s considered abuse.[]

Q. And I’m not asking that. I’m just asking if you’re testifying—can you testify that he—and I understand what you’re saying, but can you testify that she indicated she put her finger—that he put his finger into her vaginal orifice?

A. Yes, I am testifying that she demonstrated to me that he put his finger inside of her labia—of, her genitalia. Whether it went all the way in, I don’t know.

Crawford also testified that when she spoke with Mandy, she was “consistent with what [Amy] had said happened.”

Approximately two months prior to trial, Mandy said that she asked Amy about the allegations and Amy had told her something “different,” something that gave her “some concerns.” Specifically, Mandy testified that at this point she was worried that she was “judging him incorrectly” and that she was “going to put an innocent person away.” Mandy contacted the district attorney about the case and requested that the prosecutor administer a lie detector test to Amy.

At trial, the State called into question the propriety of Mand/s having expressed concern about the possibility that Bocane-gra might be innocent of the charges. During her testimony, the prosecutor accused Mandy of consulting a tarot card reader and contacting the prosecutor because “[Mand/s] tarot card reader told [her] that the defendant didn’t do it.” Mandy agreed that she sought guidance from her godmother but denied that her godmother was a tarot “card reader.” There is no evidence in this record that tarot cards were involved in any way. Instead, the record shows that Amy told her mother something “different,” which caused Mandy to experience doubt as to Bocanegra’s guilt.

Both sides agree that after Mandy requested the he detector test, both the prosecutor and Mandy agreed to a second forensic interview of Amy.

Lindsey Dula, director of program services at Alliance for Children, testified regarding her efforts to arrange for Amy’s re-evaluation. According to Dula, while Mandy, who was now twenty-two years old, appeared to be cooperative at first, Dula encountered difficulty in making the arrangements. Dula described having to make multiple attempts—“at least four times”—to get the interview set up, and then once it was set up, Mandy did not keep the appointment. When asked how many appointments were missed, Dula did not provide a specific number, but intimated by her answer—“The most recent was on the 17th of April”—that there had at least been more than one. According to Dula, “[W]hen she didn’t show up and didn’t return any other phone calls, she appeared to not be cooperative after that point.” Dula also testified that at some point, Mandy stopped returning her phone calls.

Mandy’s apparent lack of cooperation concerned Dula, who stated,

[W]hen we have circumstances in which a child is recanting or taking their statement back, we want to know that information. If the child has not been abused or if there is conflicting information, we want to find that out. When we have parents that are reporting that a child is recanting, but then don’t bring the child in, that’s concerning for us regarding if that child is actually recanting or if maybe the caregiver is just saying they are recanting or if the caregiver is then maybe influencing the child to recant, and because the child isn’t telling the story how the caregiver wants them to, that that’s why they don’t bring them in so we can get a chance to talk to them.

According to Mandy, the interview was scheduled twice. When Alliance for Children called the first time, they left a message informing her of the scheduled appointment time but not the address where the interview would be conducted or a telephone number for her to call them back and inquire. Mandy testified that the call came from a “blocked” telephone number and the message indicated only that the interview would be conducted at “the same place [she] went to last time.” Mandy did not remember where the interview had taken place two years earlier.

According to Mandy, by the time the agency called her again, she had already missed the first scheduled appointment. A second appointment was then set up, but Mandy testified that she had been unable to keep it because she could not take off of work at the scheduled time. Mandy testified that she expected that they would call her again to reschedule for a third time, but they did not. Although she had been characterized by the State at trial as uncooperative, Mandy also testified that she had asked for Amy to be re-evaluated even prior to that time but that the district attorney had refused.

Bocanegra testified in his own defense. He provided testimony about when and how he first began to help out with changing Amy’s diapers. He testified that when he and Mandy first became romantically involved and began living together during high school, he provided no help to Mandy when it came to changing Amy’s diapers. At the beginning, he explained, he had no experience in changing diapers, but as he became more comfortable, there would be times when Mandy was busy with cooking or something else, and Amy’s diapers would need changing, and Mandy would say, “Hey, change the Pamper.” After that, he got used to it, became more experienced, and according to Bocanegra, before long, he began doing “everything a dad does”—“[b]athed her, changed her, feed her, play with her, bad dreams, comfort her. She wanted to stay awake, stay awake with her.”

Bocanegra testified that when Amy got a rash, he would apply cream to it. He explained that the directions on the cream said to “apply to rash,” so he applied the cream wherever the rash appeared, including her inner thighs, almost to her waist, her vagina area, the lips of the vagina, “[ejverywhere”—wherever “the pee made contact.” He recalled that at some point, the medication had to be applied twice a day. Bocanegra testified that sometimes it appeared that the medication hurt Amy when it was applied and that she would flinch or jerk because applying the cream was “irritating the rash.” Bocanegra postulated that Amy could have misunderstood that the pain was caused from his applying the cream to the sensitive rash. Bocanegra insisted that he never touched Amy in any kind of sexual way because “[Yjou’re not supposed to. That’s not me. That’s my baby. I wouldn’t do it to a stranger. You know, that’s not right.”

On cross-examination, Bocanegra testified that he could not say when the rashes stopped, but he testified that they continued after she transitioned from diapers to underwear. No medical records were offered into evidence, but when the State showed Bocanegra a document that the State represented was a medical record from Dr. Carrizales, Bocanegra agreed that the last note he saw about rashes in that record was dated in 2011. When asked how Amy could confuse the touching incident from 2012 with a time when he was applying cream for a rash in 2011, Bocanegra testified that the doctor had given them large tubes of the cream and had instructed them to use the cream if the rash ever returned. At the State’s request, using an anatomically correct doll, Bocanegra demonstrated for the jury how he had applied the cream on Amy.

To the prosecutor’s question, “[HJow on earth would that make her feel your finger so far up inside her vagina it makes her belly hurt?” Bocanegra replied, “I don’t know.” And when the State further pressed about Amy’s alleged statement, “What you just showed us, does that match up to what Amy’s outcry was?” Bocanegra replied, “I guess not.”

Bocanegra agreed at trial that a four-year-old girl would have no knowledge of what it would feel like to have a finger inserted into her vagina unless someone had told her or unless it had happened to her. He also agreed that Amy’s words to her mom, the sexual assault nurse examiner, and the forensic examiner “mean something.” And although vigorously pressed to do so by the State during cross-examination, Bocanegra refused to characterize Amy as “a liar”:

Q. Do four-year-olds make this stuff up?

A. The allegation?

Q. Yes. Do they make this stuff up?

A. I mean, it—

Q, ‘Yes” or “no”, do four-year-olds make this stuff up?

A. Putting cream on a rash could hurt her.

Q. That’s not what I asked you. I asked you if four-year-olds make this kind of stuff up. I’m not asking you about rashes. I’m not asking you about medicine. I’m asking about the allegation; do four-year-olds make this stuff up?

A. ' Possibly.

Q. But you told the detective on March of 2013 that four-year-olds don’t make stuff like this up, correct?

A. I—I told you I don’t really remember.

Q. In fact, your words were, “It’s not normal for a four-year-old to make this up.” Do you remember that?

A. Well, if you’re saying that, I guess it’s what I said.

Q. Okay. Is [Amy] a liar?

A. I can’t say that.

Q. Is [Amy] a liar, “yes” or “no”?

A. I can’t say “yes” or. “no”.

Q. Okay. Well, one of you is lying, so is it you or is it [Amy]?

A. I—I can’t—I mean, I can’t answer that.

Q. You—you can’t answer whether you’re lying or whether [Amy] is lying?

A. I mean, nothing was done.

Q. Excuse me?

A. Nothing was done.

Q. So is [Amy] a liar, “yes” or “no”?

A. I can’t answer that.

Q. “Yes” or “no”, is [Amy] a liar? Is this four-year-old little girl a liar, “yes” or “no”?

A. She could apply it by the' thing [sic].

Q. Is she a liar, “yes” or “no”? That’s all I’m asking you.

A. That’s all I’m telling you. I mean—

Q. Is your answer “yes” or “no”?

A. No,

Mandy and Bocanegra both testified that they were no longer romantically involved at the time of the trial. Mandy, however, admitted that not only had she come to court with Bocanegra but also that she was supporting him. Like Bocanegra, Mandy was aggressively pressed by the prosecution to choose who was lying—Amy or Bocanegra—but unlike Bocanegra, when questioned on that point, Mandy eventually answered “Amy”:

Q. Are you calling your daughter a liar?

A. Do you want me to tell you what she told me now?

Q. No. I’m asking you if you’re calling your daughter a liar.

A. She does lie.

Q. Are you calling your daughter a liar about what she told you?

THE WITNESS: Can I use my Fifth Amendment?

THE COURT: No, not to that question.

A. It depends what it is that—what me and her talk about because she does lie.

Q. I’m asking you if you are calling your daughter a liar of what she told you in December of 2012. Are you calling her a liar?

A. I’m not calling her a liar, but what has she told the [sic] me now—

Q. [Mandy],—

A. I do believe—

Q. —that’s not what I’m asking you. ‘Yes” or “no” are you calling your daughter a liar?

A. I don’t know.

Q. So did she lie to your mom?

A. I don’t know what it was she said to my mom. I just know what my mom told me.

Q. Did she lie to your sister?

A. Me and my sister haven’t even never spoke about this case.

Q. Did she lie to the forensic interviewer?

A. They never told me what she said—

Q. Did she lie to the nurse examiner?

A. I don’t know what happened there. I don’t know what they did or—

Q. So let me ask you a question. Who’s lying, him or your daughter? Pick one, [Mandy]. Who’s lying? Tell this jury which one of you are lying?

A. You are!

Q. Ma’am, are you—is he lying or is [Amy] lying? That is the question. Which one of those two people are lying? Tell the jury which one is lying. Pick a side. Tell them.

A. Well, when I told you “Can I tell them what my daughter told me” you’re like, “I can’t use that,” but you’re like “[Mandy], I’m trying to help you out ■because I want to find out the truth.”

[PROSECUTOR]: Objection. Non responsive.

THE COURT: Ma’am, you need to answer the question.

A. I don’t have an answer.

Q. [BY PROSECUTOR] You don’t know who’s lying?

A. Isn’t that why we’re here?

Q. So you’re going to look at this jury and tell them that you—someone is not telling the truth. Is it [Bocanegra] or is it your child?

A. Truth about what? You’re not being specific. My daughter—I’ve caught her in several lies. She’s a child.

Q. [Mandy], [Amy] said that her daddy stuck his finger so far up her “cookie” that it made her belly hurt—

[DEFENSE ATTORNEY]: Objection.[]

THE COURT: You’ll have an opportunity to redirect. Ask the question.

Q. [BY PROSECUTOR] The statement that [Amy] made that you testified, which was in your statement of her outcry statement was that he stuck his finger in her “cookie” and it made her belly hurt. So I’m asking you who is lying, your daughter or the defendant? Which one of them is lying?

A. What I know now—

Q. No, [Mandy], answer .the question. Who is lying? Pick one. Tell us. Tell us who’s lying.

A. Now that I’ve spoken to my—

Q. [Mandy]—

A. —daughter, she—

Q. [Mandy]. No.

A. My daughter. My daughter.

Q. No ma’am. I’m asking you the question.

A. Well, aren’t you saying to answer to them—

Q. [Mandy], no.

A. That’s what I’m doing.

Q. You tell us if [Amy] is lying or the defendant is lying. I’m not asking you to give us a narrative. I’m asking you to answer the question. You don’t get to give a narrative. Who is lying?

A. [Amy].

Q. Okay.

[PROSECUTOR]: I pass the witness.

Although she eventually answered “Amy” in response to the prosecutor’s repeated questioning, Mandy also clarified that she was not calling her daughter a liar but rather believed that Amy had misunderstood or misinterpreted what happened to her:

[BY DEFENSE COUNSEL]:

Q. So you were forced to give an answer to that?

A. Yes.

Q. But do you feel as though your child was lying or she might have misunderstood what happened to her?

A. I think she misunderstood what happened to her.

There is no evidence in the record of what it was that Amy later said that led her mother to this conclusion, but the above testimony provides evidence that Amy said something to her mother that caused Mandy to reconsider the allegations.

Amy was six years and ten months old at the time of the trial. Her testimony was brief. She testified to her name, her age, where she went to school, what grade she was in, her favorite movie, and her favorite color. Amy demonstrated that she understood the difference between the truth and a lie, and she testified that “bad stuff is coming” when someone tells a lie. She described who she lived with, identified her family members, and responded, “Ca-lub” when asked “[w]hat’s your daddy’s name?” When the State asked her the last time she saw Bocanegra, Amy provided inconsistent answers:

Q. When’s the last time you got to see [Bocanegra]?

A. When I was three.

Q. When you were three. You haven’t seen [Bocanegra] since you were three?

A. (Witness moves head up and down.)

Q. [Amy], remember what we talked about. You have to tell me things that really happened, remember? Did you tell me earlier that you get to see [Bocane-gra] all the time?

A. Uh-huh.

Q. So when is the last time you got to see [Bocanegra]?

A. When I was little.

When asked the general question of whether her mom had “talk[ed] to [her]” before she came to court that day, Amy answered “yes.” But when asked if Mandy told her “what [Amy was] going to talk about,” and if Mandy told her “what to say,” Amy said “no.”

As to the allegations of sexual assault by Bocanegra—a subject broached by both the prosecutor and the defense attorney during their examination of her—Amy provided no evidence at all. On direct examination by the prosecutor, Amy testified as folllows:

Q. Do you remember something that you told your mommy when you were four years old?

A. No.

Q. Okay. [Amy], I’m going to show you these two dolls. Can you point to which doll is more like you. Can you touch it for me?

A. [Witness complies.]

[PROSECUTOR]: For the record, the witness is pointing to the female anatomical doll.

Q. Why is this doll more like you, [Amy]?

A. Because I’m a girl.

After identifying various body parts on the doll, Amy also identified the doll’s “butt” and testified that the “butt” was used “to go to the bathroom.” She also identified another body part that was used to “pee” from. The direct examination then continued:

Q. Pee. So you don’t have a name for this?

A. Huh-uh.

Q. Okay. Did you tell me at lunchtime that you called this your “cookie”?

A. Huh-uh.

Q. You didn’t tell me that?

A. (Witness moves head from side to side.)

Q. Okay. [Amy], did you ever talk to your mom about [Bocanegra] sticking his finger in your “cookie”?

A. Huh-uh

Q. Have you and your mom talked about this?

A. Huh-uh

Q. When is the last time you talked to your mommy about this?

A. I don’t know.

Q. Do you remember?

A. Huh-uh

Q. Okay. When is the last time you talked to [Bocanegra] about this?

A. I haven’t.

Q. [Amy], are you telling the truth?

A. Huh-uh

Q. Did your—did your mommy talk to you before you came up here?

A. No.

Q. Does mommy get upset about [Bocanegra]?

A. Yeah.

When questioned by the defense attorney, again Amy provided no evidence regarding the allegations:

Q. [Amy], did you talk to this lady, her name is Melinda who just spoke with you, you talked with her at lunchtime today?

A. Yeah.

Q. Okay. And did she show you any video or anything or did you just talk?

A. Just talked.

Q. Okay. And do you remember when you were four years old and you went to talk to a lady who showed you dolls like that?

A. No.

Mandy admitted that even though the conditions of Bocanegra’s bond restricted his contact with Amy, Amy had seen Bocanegra during the months leading up to the trial. Bocanegra admitted that when he got out of jail in June 2013, the conditions of his bond required him to not have contact with Amy. He testified that although he tried to respect the court’s orders,, it was too difficult because he missed Amy and Mandy told him that Amy missed him. Even though he admitted he knew it was wrong, approximately a year later, he began seeing Amy at family gatherings under the supervision of other adults. He admitted that he gave Amy a dollhouse for Christmas, and he admitted that he had seen her as recently as two weeks prior to trial.

VI. Summary of Sufficiency Argument

In his fourth point, Bocanegra complains that there is insufficient evidence to support his conviction for aggravated sexual assault of a child and the jury’s rejection of his medical-care defense.

Relying on Hooper, Bocanegra’s attorney argues that the jury’s guilty verdict and the jury’s rejection of the medical-care defense were based on “inference-on-inference speculation” and that the evidence that the State submitted at trial was “mere theorizing or guessing about the possible meaning of facts.” Consequently, counsel argues, the jury reached its conclusions using impermissible inferences, rather than reaching a conclusion “by considering the various facts and deducing logical consequences.”

As the State correctly points out, there is no bar in the law to “inference stacking.” A factfinder is permitted to draw multiple reasonable inferences as long as each inference is supported by the evidence presented at trial. See Hooper, 214 S.W.3d at 15. But as the court of criminal appeals also points out in Hooper, there is a difference, between inferences and speculation:

Under the Jackson test, we permit juries to draw multiple reasonable inferences as long as each inference is supported by the evidence presented at trial. However, juries are not permitted to come to conclusions based on mere speculation or factually unsupported inferences .... [A]n inference is a conclusion reached by considering other facts and deducing a logical consequence from them. Speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented. A conclusion reached by speculation may not be completely unreasonable, but it is not sufficiently based on facts or evidence to support a finding beyond a reasonable doubt.

As stated above, juries are permitted to draw multiple reasonable inferences from the evidence (direct or circumstantial), but they are not permitted to draw conclusions based on speculation. Without concrete examples, it can be difficult to differentiate between inferences and speculation, and between drawing multiple reasonable inferences versus drawing a series of factually unsupported speculations....

Inference stacking is not an improper reasoning process; it just adds unnecessary confusion to the legal sufficiency review without adding any substance. Rather than using the language of inference stacking, courts of appeals should adhere to the Jackson standard and determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict.

Id. at 15-17. As Bocanegra’s attorney points out, the problem here is not so much that inferences were stacked upon inferences, but that speculation was stacked upon inferences. And, as the court of criminal appeals instructed in Hooper, while a conclusion based upon speculation may not be unreasonable, “it is not sufficiently based on facts or evidence to support a finding beyond a reasonable doubt.” Id. at 16.

In a nutshell, at trial, the State’s theory of the case centered on the argument that the onset of urinary problems and the child’s fear of sleeping by herself began during the same .time period when the outcry was made, thus evidencing that the child was the victim of sexual abuse. The State argued that the evidence was fabricated regarding the child’s ongoing and recurring urinary problems and diaper rashes pre-dating the allegations against Bocanegra and that Bocanegra and Mandy were in collusion and were not “standing up for [Amy]” as they should.

In its closing statement, the State characterized Mandy as “a horrible, horrible mother” and “a complete liar.” The prosecutors argued that there were only two possible scenarios—that Mandy either coached Amy to make a false allegation at the time it was made or Mandy coached Amy to testify that she did not remember anything at the time of trial—and asked the jury to decide which.

The State’s theory is no different on appeal. In its brief the State provided us with a recitation of the facts that represent the evidence supporting—and cast in the light most favorable to—the verdict. Using the Jackson standard and with the guidance of Hooper, we will examine all of the evidence, using the facts as set forth by the State as a guide to determine the sufficiency of the evidence to support the verdict here.

VII. Viewing the Pacts in Light Most Favorable to the Prosecution

In its brief, the State tells us that the facts, in the light most favorable to the verdict, are as set out in the following eleven paragraphs from its analysis of the sufficiency issue:

[Paragraph 1] Sometime in late 2012, [Mandy] noticed that her daughter was having “some trouble.” [RR III—211, 226-27, 225, 230]. The four-year-old girl was experiencing difficulty sleeping and had begun urinating on herself “all the time.” [RR III—211, 226-27, 230-31, 233] [Mandy] took the child to the doctor several times for treatment. [RR IU-231],

[Paragraph 2] Finally, on December 16, 2012, [Amy] revealed what was bothering her. [RR 111-232,252] As she sat on the bed as her mother brushed her hair, she confessed that she was afraid to sleep alone in her bed. [RR III—232] When [Mandy] asked' why, the little girl confessed that she was “scared” about her “dad touching her.” [RR III—234]. The child disclosed that Appellant had put his finger in her “cookie”—the word she used to describe her vaginal area— and that “it hurt her tummy.” [RR HI-234—35] [Mandy] recalled that- [Amy] had often gotten upset, urinated on herself, and had refused to sleep by herself, when left alone with Appellant. [RR III-235—36]. To be sure of whom the child was speaking, [Mandy] mentioned several other persons to [Amy], but the little girl maintained “it. was no one but” Appellant. [RR III—236] [Amy] later repeated her outcry to her grandmother. [RR III-269],

[Paragraph 3] “Shocked and mad,” [Mandy] took [Amy] to Cook Children’s Hospital several days later, after talking to her own mother, the child’s grandmother. [RR III-254, 270] [Mandy] was informed that the hospital could not perform an, exam until after a police report had been filed. [RR III-253-254] [Mandy] did not take the child to the police station for another day or two, however, and a medical examination at the hospital was not performed for another month. [RR III-254, 269, 282-83; IV-16, 31].

[Paragraph 4] The child nevertheless repeated to the nurse examiner what she had told her mother and grandmother: that her “dad”—whom she specifically identified as “Caleb”—had “touched my cookie”—which, using an anatomically correct doll, she again identified as her vaginal area. [RR IV-17-19, 27]. [Amy] also demonstrated how Appellant had penetrated her using her hands and fingers. [Footnote omitted.] [RR IV-19-20, 28-29]. She recounted that it hurt; that it had happened only one time; and that the assault had occurred at Appellant’s home. [RR IV-20].

[Paragraph 5] DNA samples were not collected because [Mandy] had reported that the latest the assault could have transpired was “sometime in November, 2012,” two months prior to the exam. [RR IV-21-22]. She also reported that [Amy] wet the bed, but not that the child had accidents during the day, though she was asked about it. [RR IV 26-27], Nor did she indicate that the child was using any medications. [RR IV-26; V-69],

[Paragraph 6] A physical examination failed to uncover any physical signs of abuse, but given the child’s age, the delay in the examination, and the type of abuse reported, the lack of findings was “normal”; indeed, it is so “common” that no physical findings are revealed under such circumstances that 95 percent of documented abuse cases—when the abuse has been witnessed or the abuser confessed—report similar findings. [RR IV-21-23]. The nurse examiner further observed that the hymen of a four-year old girl “is very thin” and taut, so that even if penetration “did not actually go through the hymen,” pressure on it “would be painful to the child.” [RR IV-23-24]. [Mandy] did not report the presence of a rash on [Amy] to the nurse examiner, and the nurse examiner did not report seeing one on the child. [RR IV-20; V-35, 76].

[Paragraph 7] Appellant testified that during the time he lived with [Mandy] and [Amy], he took over the role as the child’s father, and as a consequence performed such parental chores as changing her diapers, feeding her, bathing her, playing with her, and “comforting] her.” [RR V-24, 26]. The little girl developed rashes, he explained, as a result of not being potty-trained, and he therefore had to apply prescription cream on her legs, buttocks, inner thighs, and her vaginal area to treat it. [RR V-26-27]. He applied the medicine, he testified, “pretty close to going inside [the child’s vagina], like, right on the outside and waistline, and inner thighs and all that.” [RR V-49], He denied, however, ever touching the girl “in any kind of sexual way,” and maintained he would “never” do that. [RR V-31].

[Paragraph 8] Asked on cross-examination to demonstrate how he applied the cream, Appellant showed the jury on an anatomically correct doll [RR V-36-37]. He could not explain how what he had demonstrated would have made [Amy] “feel [his] finger so far inside her vagina it [made] her belly hurt,” and conceded that what he showed the jury “does not match up to what [Amy’s] outcry was.” [RR V-36-37]. He also claimed he could not remember whether he had told detectives investigating the complaint that he had applied medicine to the child’s vagina, though he acknowledged that it would have been important to tell them. [RR V-37-38]. He declined to review the tape of the detective’s interview to refresh his memory. [RR V-37-38].

[Paragraph 9] Both Appellant and [Mandy] admitted that they had gotten back together shortly after Appellant’s arrest; that [Mandy] had visited Appellant while he was in jail; that [Mandy] sent Appellant pictures of both children; and that they had remained in contact and had seen each other a number of times since Appellant had been released on bond. [RR III-237-38, 244, 248-50, 271; V-39-42, 53-54]. [Mandy] went so far as to maintain that she “supported” Appellant through the trial, and admitted that she had accompanied him to the courtroom the first day of trial, sat next to him, and each day after trial she had waited for him outside the courtroom. [RR III-273; V-40, 71].

[Paragraph 10] [Mandy] also acknowledged that she had asked prosecutors to give [Amy] a polygraph test and to re-interview her, yet she had repeatedly missed appointments with prosecutors and a forensic interviewer so they could talk to the child. [RR III-250-51, 265-66, 272; IV-35-37]. She acknowledged that the prosecution had- to subpoena her to appear at trial. [RR III—251]. [Mandy] declared that she did not believe her daughter and she did not think that Appellant was guilty. [RR III—262, 268]. She added on direct examination during the defense case-in-chief that Appellant paid child support for their son “right out of his paycheck.” [RR III-276].

[Paragraph, 11] More importantly, both [Mandy] and Appellant confessed that, in violation of. Appellant’s bond condition, Appellant had seen [Amy] on a number of occasions, including Christmas, when he had given her a dollhouse; a trip to Six Flags over the summer; a visit to [Mand/s] old school; a fishing trip; “parties”; din