Lumsden v. State (564 S.W.3d 858, 2018)

Opinion by Justice Meier

I. Introduction

A jury found Appellant Raymond Lumsden guilty of aggravated sexual assault of a child, indecency with a child, and criminal solicitation of a minor and assessed his punishment at confinement for life for each offense, and the trial court ordered the three life sentences to run consecutively. See Tex. Penal Code Ann. §§ 15.031, 21.11, 22.021 (West Supp. 2018) (setting forth elements of the offenses of criminal solicitation of a minor, indecency with a child, and aggravated sexual assault of a child, respectively). In fourteen issues, Lumsden appeals his convictions and sentences. We affirm.

II. Background

A. The Victim

Allison, who was almost nine years old at the time of the trial, testified that after her mother Kelly started dating Lumsden, they moved in with him. Allison had her own room at Lumsden's house.

On the night in question, Kelly went to bed early because she was not feeling well. Allison's brother David had also gone to bed. Allison stayed up late watching television with Lumsden. At one point, she went upstairs to grab a blanket and a pillow because she was really sleepy. She laid down beside Lumsden, who was sitting on the couch watching television. While Allison was laying on her back on the couch, Lumsden put his pointer finger under her purple and pink monkey pajamas and under her panties and touched her "privates." Allison said that Lumsden touched the outside of her private that she used to pee and that his pointer finger stayed still, which made her "[a] little uncomfortable." Lumsden touched the inside of the part that Allison used to poop. Allison testified that Lumsden wanted her to touch "the thing he went pee with," but she said no. Allison became hungry and asked for red Jell-O, which Lumsden allowed her to have. Afterwards, Lumsden went to bed, and she slept on the couch because she was too tired to go upstairs to her room. Allison testified that the time on the clock reflected that it was midnight.

The next morning, after Kelly came downstairs and woke up Allison, Allison told her that Lumsden had touched her privates. Kelly then took Allison to the police station, and from there, the police escorted Kelly and Allison to the hospital. Allison told a nurse what Lumsden had done to her and underwent a physical exam.

The following day, Allison recounted the touching to a forensic interviewer at the Children's Advocacy Center. Allison thereafter began seeing a counselor.

B. The Victim's Mother

Kelly, who was divorced from Allison's father, testified that she moved in with Lumsden in November 2014. On the evening of March 10, 2015, Kelly had a kidney infection, took a muscle relaxer, and went to bed.

When Kelly went downstairs the next morning, she found Allison asleep on the couch. Kelly testified that finding Allison on the couch was unusual because she had her own bedroom.

Kelly sat down next to Allison on the couch, rubbed her back, and told her that it was time to wake up. Kelly said that Allison opened her eyes "really big" like she was "startled almost," looked at Kelly, and said she was really tired. Kelly asked Allison why she was tired, and she said, "Ray and I had a lot of fun last night." When Kelly asked what they did, Allison replied that it was a secret. Kelly told Allison that she was not to keep secrets from her. Allison said that she could tell Kelly one thing-that she and Lumsden had eaten Jell-O and cookies even though Allison knew that Kelly did not like her to have sugar at night. Kelly told her that it was sometimes okay to have sugar at night.

Kelly asked what Allison and Lumsden had done. At that point, Allison's demeanor completely changed. Kelly explained that Allison "tightened up. She looked down. She looked scared. Something was wrong." Kelly testified that she had never seen Allison act like that. Allison said that she could not tell Kelly the other secret because Lumsden had told her "never ever to tell" and that Kelly would be mad. Kelly then asked Allison, "Did he touch you?" Allison said, "Yes, in two places," and she held up her fingers. Allison told Kelly that Lumsden had touched her "privates" and her bum, and she pointed down whenever she said privates. Kelly asked Allison whether Lumsden had touched her inside or outside her panties, and she said inside. Allison told Kelly that Lumsden had inserted his finger inside her privates and her bum, that he asked her if she liked it, that she said no, and that he said that was what mommy likes. Kelly told Allison, "Baby, you know that wasn't right. You know that was wrong. Right?" Allison said, "[Y]eah." Kelly asked Allison if she had touched Lumsden, and Allison replied, "He asked me if I wanted to, but I said no." Kelly picked up Allison and told her that she was proud of her for telling her what had happened and that they were going to talk to some other adults they could trust.

Once they were in the car, Kelly called 911, and the 911 operator guided her to the sheriff's office. Kelly spoke briefly to two police officers at the Denton County Sheriff's Office. Then, she followed a police officer to the hospital. Kelly testified that she was in the room when a sexual assault nurse examiner (SANE) examined Allison.

While they were at the hospital, Kelly received text messages from Lumsden. She "was really angry" and sent him a text that asked how he could have done this. Lumsden "was really mad" and responded that Allison had blamed her grandpa and her father for "the same things," that she could not be trusted, and that she needed help. Kelly testified that Allison had never told her that her grandpa or her father had touched her inappropriately and that she (Kelly) did not believe Lumsden's texts.

The following day, Allison's father took her to the Children's Advocacy Center, and Kelly met them there. Kelly moved out of Lumsden's house.

C. The Victim's Half-Brother

Kelly's son David testified that his mother had previously dated Lumsden, and David identified Lumsden in the courtroom. David said that on the night in question, he was at Lumsden's house with Kelly, Lumsden, and Allison. David testified that he had school the next day but that Allison did not because she attended school in a different school district. David recalled that Lumsden had given Kelly some medicine because she was not feeling well and that she went to bed. David testified that he, Allison, and Lumsden had watched television for a while but that he had gone to bed about 9:30. David heard Lumsden tell Allison that she could stay up as long as she wanted because she did not have school the next day. When David went to bed, Allison and Lumsden were sitting next to each other on the couch.

The next morning when David went downstairs to eat breakfast, he saw Allison sleeping on the couch with a blanket over her. When he left for school, Allison was still asleep.

While David was at school, the receptionist notified him that his mom was going to be late because she was at the hospital. When Kelly eventually picked up David, they went to Lumsden's house, and he packed a bag. After they left, Kelly received a call, and they returned to Lumsden's house, which had police cars everywhere. David said that they went to a shelter that night. David did not recall Allison ever telling him about her grandpa or her father touching her inappropriately.

D. Denton County Sheriff Deputies Gilberto Velo and Maurice Floyd (the deputies)

Deputy Gilberto Velo with the Denton County Sheriff's Office testified that he and Deputy Maurice Floyd were dispatched to the patrol office on the morning of March 10, 2015, in response to a sexual assault call report. The deputies spoke with Kelly, who appeared to be shocked and in disbelief as she was talking. Deputy Velo said that Kelly teared up as she explained what Allison had told her had occurred the night before.

Deputy Floyd recalled that Kelly

began to unfold to us verbally what her daughter stated to her about secrets, plural, and her comment as I recall, she says, well, honey, you know, momma has always told you we don't keep secrets. And then her mother said, well, I need to know what those secrets are. And from what I call -- recall, she stated that her daughter stated to her that the secrets involved Jell[-O], that she would be rewarded, so to speak, Jell[-O] for, number one, keeping quiet about what the secret was about and then, number two, the mother began to elaborate on the fact that she had been touched in a -- her private area and that she wasn't -- she had been told, now, don't tell anybody. Don't say anything to mommy about this because basically momma does -- does this too to me, that being the actor.

Neither Deputy Velo nor Deputy Floyd interviewed Allison that day. Allison was not in the room while the deputies spoke with Kelly. Afterwards, Deputy Floyd spoke with one of the investigators, who advised him that Allison needed to be seen by a SANE at Denton Regional Medical Center.

Kelly and Allison then followed the deputies to Denton Regional Medical Center. The deputies contacted Child Protective Services to make them aware of the report they had taken. Once the investigators arrived at the hospital, the deputies left.

E. Investigator John Schofield

John Schofield, an investigator with the Denton County Sheriff's Office, testified that he went to Denton Regional Medical Center on March 10, 2015, and obtained a box from a SANE and placed it in evidence at the sheriff's office. Later that evening, Schofield assisted warrant deputies by watching for Lumsden's vehicle because a warrant had been issued for his arrest. Schofield spotted the vehicle and went toward the area where Lumsden's residence was located but was alerted that he had been arrested.

F. The SANE

Nurse Julie Carriker, a registered nurse who worked part-time as a SANE for Denton County, testified that when she spoke with Allison at Denton Regional Medical Center, the first thing she asked her was if she knew why she was there. Nurse Carriker testified that Allison told her the following:

So she told me that Ray touched her private part or her privates. She said that he did it all the time. She said that she didn't know why, but that it had happened again the previous night. And she told me that she was in the living room, that he had turned the TV off[,] and [that] he [had] touched her kidney parts was what she called it. And so I said, can you point to where that is? And she pointed to her vaginal area.

Then she said the second time that he touched her, he touched her butt[,] and he put his hands in her pajamas. And she would say that he swirled his hand around, and she said[,] "Here," and then she pointed again to that -- to the vaginal area.

She said that he kept pushing his finger into her butt and that he always swirled it around and it hurt her. She also said that he touched his pee part, and she pointed to the area -- the groin area. And she said he was swirling his pee part around playing with it. She mentioned that he kissed her on the lips, and she said that he does it all the time and that he wanted her to touch his private parts but she said no.

After obtaining Allison's history, Nurse Carriker performed a head-to-toe exam of Allison, looking for any signs of trauma. Nurse Carriker testified that she performed Allison's physical exam at 2:00 p.m. on March 11, 2015, which was approximately fourteen hours after the incident. Nurse Carriker explained that during the exam, she noted "generalized redness" that covered Allison's vaginal area and a tear or a cut "barely inside the anal opening at about 7:00." Nurse Carriker testified that the redness on Allison's vagina was consistent with Allison's statement that Lumsden had put his finger there and had swirled it around. Nurse Carriker documented in her report that Allison's anus dilated quickly, and she explained that she sees that "in abuse cases." Nurse Carriker testified that the tear in Allison's anus was consistent with Allison's statement that Lumsden had inserted his finger in her bottom. Allison told Nurse Carriker that the tear in her anus bothered her. Nurse Carriker swabbed Allison's mouth, vagina, anus, and fingernail area and combed through her hair to collect biological evidence.

G. The Forensic Interviewer

Priscilla Alvarado, who serves as a family services coordinator at the Children's Advocacy Center for Denton County, testified that during her forensic interview with Allison on March 11, 2015, she said that her mom's boyfriend Lumsden had "done this to her." Alvarado testified that Allison provided sensory details and peripheral details when she explained what had happened to her. The video of the forensic interview was played for the jury.

During the forensic interview, Allison said that she was seven years old and that she was there because "my friend Ray [whom she identified as her mother's boyfriend] keeps touching my privates, and I don't know why." Allison told Alvarado that Lumsden had touched her more than one time, that she could not remember the first time, but that it had occurred when she was seven years old. Allison later told Alvarado that Lumsden had touched her four times, that one time he only touched her pee part, and that the other times "were kind of like the same thing."

Allison told Alvarado about a recent touching. Allison said that after she took a bath, she went downstairs to be with Lumsden. She said that she was wearing her Monkey Junior pajamas and rainbow panties and that Lumsden was wearing a dark blue shirt and gray pants. After her half-brother David went to bed, she went upstairs to grab toys and a pillow so that she could sleep on the couch. Allison said that Lumsden was sitting at the very end of the couch and that she was laying on him on her back "to get really cozy." Allison explained that it was midnight and that Lumsden touched her "privates," which she explained was her term for the body parts that she used to go to the bathroom. Allison said that Lumsden touched her under her clothes with his fingers and that he was "wobbling" and kept "wiggling" his fingers. Allison told Alvarado that Lumsden had put his finger in her butt "really, really deep" and that it had made her feel "weird" and "disgusting" and "embarrassed." Allison said that she told Lumsden to stop. Allison said that Lumsden asked her to touch his pee part, but she told him no. Allison told Alvarado that Lumsden "tells me he always touches [Mom's] butt and pee spot." Allison said that Lumsden also told her not to tell anyone and specifically not to tell her mother. Lumsden then gave her red Jell-O, which she said was her favorite. Allison told Alvarado that this kind of touching had not happened with anyone else before.

H. Lumsden's Son's Friend

Elliott, who was in eighth grade, testified that he was friends with Lumsden's son John. After Lumsden bonded out of jail on these offenses, Elliott received a call from a man named Troy who lived at Lumsden's house and was allegedly John's uncle. Troy told Elliott to tell John that "if they ever asked questions," he should say that when Allison was in the kitchen doing cartwheels, her "grandpa was doing stuff that he shouldn't have been doing."

I. Investigator Ashleigh Berg

Ashleigh Berg, an investigator with the Denton County Sheriff's Office, testified that she went to Lumsden's residence on March 10, 2015, to execute a search warrant. Berg found blankets and a pillow on the couch, which looked like it "was made up into a bed," and were consistent with Allison's statement. Berg also found an empty serving cup of Jell-O on the top of the trash can in the pantry in the kitchen and the pull-off lid was on the countertop in the kitchen, which she testified was consistent with Allison's statement. Berg photographed the Jell-O container and the couch. Lumsden was at the residence during the search and gave Berg permission to take photographs of text messages on his phone.

J. Investigator Marco Deleon

Marco Deleon, who previously worked in criminal investigations with the Denton County Sheriff's Office, testified that on March 10, 2015, he met with Kelly when she brought Allison to the sheriff's office. Deleon described Kelly as "very distraught, very self-blaming." After hearing Kelly describe what had happened to Allison, Deleon made the decision that they should move forward immediately with a sexual assault exam by a SANE at the hospital because he estimated that only twelve to fourteen hours had passed since the alleged sexual assault had occurred.

Deleon testified that afterwards, he met with Nurse Carriker and reviewed her report, which indicated that Allison had a tear in her anus that was consistent with a fingernail; that her anus dilated very quickly, indicating that it had been recently penetrated; and that she had redness in her vaginal area. Based on Nurse Carriker's findings during Allison's physical exam, Deleon obtained an arrest warrant for Lumsden, which was executed at his residence when he arrived home from work.

Upon arrest, Lumsden wanted Deleon to look at the text messages between him and Kelly. Deleon described Lumsden's text messages to Kelly as setting the stage to show that someone else was responsible for the sexual assault of Allison. During the search of Lumsden's residence, Lumsden pointed out some legal paperwork that he felt was relevant to show that he was not responsible. Deleon collected the paperwork but did not find Lumsden's defense to be valid. Deleon testified that when he looked into Lumsden's statements that Allison's grandpa or her father had inappropriately touched her, Deleon found that Lumsden was the root of those statements.

Deleon testified that the day following Lumsden's arrest, he (Deleon) watched Allison's forensic interview from a room that was adjoined to the interview room. Deleon said that Allison provided "a lot of details" that they did not know when they executed the search warrant on Lumsden's home. Deleon said that Allison described the clothing she had on during the sexual assault-monkey pajamas and rainbow panties-and the color of the pants and shirt that Lumsden had been wearing. Deleon said that Allison described laying on the sofa with Lumsden and getting cozy with him before the sexual assault occurred. Deleon testified that the statements Allison made during the forensic interview were corroborated by the evidence found at Lumsden's residence and by the findings of the sexual assault examination. Deleon took buccal swabs of Lumsden's mouth to obtain his DNA.

Deleon spoke with Kelly again after Allison's forensic interview. Kelly told Deleon about the background of Lumsden's relationship toward children, which reflected preplanning and grooming. Kelly also gave Deleon a box of items.

During the investigation, Kelly told Deleon that she was concerned about a blog called Topics that discussed Kelly and Allison and mentioned paying Kelly some money to make the case go away and to prevent Allison from having to testify in court. Deleon traced several of the usernames that posted about Kelly and Allison and built up Lumsden's character back to a single source-Lumsden's cell phone.

Also during the investigation, Deleon was made aware that people were receiving phone calls that were trying to interfere with the investigation. Troy told Deleon that Lumsden was using his (Troy's) name and calling people. Troy was ultimately ruled out as the person who was making the phone calls.

K. Lumsden's Son

John, who is Lumsden's son, testified that he was not at his dad's house when the events at issue transpired. John said that Allison never told him anything about her grandpa or her father touching her inappropriately. John testified that Allison never touched him inappropriately.

L. Forensic DNA Analyst

Christina Capt, who is a technical leader and a forensic DNA analyst with the University of North Texas Center for Human Identification, testified that the vaginal swabs that had been taken from Allison were used to develop an unknown Y STR profile. The buccal swabs from Lumsden were used to develop a known Y STR profile. Capt explained that the profile developed for Lumsden was compared to the profile from Allison's vaginal swab, and "at all nine locations where we obtained data for the vaginal swab, there was an exact match with the alleles detected in Raymond Lumsden's profile." Capt testified that she was thus not able to exclude Lumsden from being a contributor to the unknown Y STR profile found in Allison's vaginal swabs. Capt further testified that six out of 10,000 people would have the same nine markers that were located in this case and that no other male contributors were detected on any of the items that were tested.

M. Lumsden

Lumsden took the stand during the defense's case in chief. Lumsden testified that when he was sixteen years old, he was convicted of fifth-degree burglary in Minnesota and was sentenced to adult prison. While Lumsden was in prison, he saw Troy, whom he had seen before at family get-togethers and understood that he was a relative. Lumsden later learned from his mother that Troy was a cousin on his father's side. Lumsden said that Troy protected him while he was in prison. Because Lumsden felt a debt of gratitude toward Troy, Lumsden housed and fed him once they were released from prison.

Lumsden testified that due to the kids being home for spring break and Kelly being sick, he had asked Troy to come help out with his kids. Lumsden said that on the night in question, Kelly was in bed when he came home from work, Allison was watching television, and David was playing video games. Lumsden testified that he gave Allison red Jell-O between 8:00 and 9:00 p.m.

Lumsden went upstairs and put on a pair of gray sweatpants and a blue shirt. Lumsden said that when he came downstairs, he finished some work and then sat on the couch and watched television with Allison. Lumsden testified that David went to bed about 10:15 p.m. and that he went to bed around 10:30 p.m. after locking the front door and setting the alarm. Lumsden agreed that he was alone on the couch with Allison for a period of time.

Lumsden said that when he went upstairs to go to bed, Allison was already asleep on the couch. He woke up Kelly and told her that Allison was sleeping on the couch downstairs, and Kelly said that Allison was supposed to be sleeping in her own room. Lumsden said that Kelly went downstairs and dealt with Allison around 10:45 or 11:00 p.m. Lumsden testified that he did not go downstairs in the middle of the night and assault Allison.

When Lumsden went downstairs the next morning, Allison was sitting on the couch eating cereal that David had prepared for her. Lumsden said that he and Kelly had a very explosive fight that morning and that Allison was crying when he left for work. When Kelly sent Lumsden text messages later that morning accusing him of sexually assaulting Allison, he knew that he had not sexually assaulted Allison and told Kelly that she needed to look at Allison's grandpa and father as possible suspects.

Lumsden also considered the possibility that Troy could have been a suspect but did not know if he would do something like that. Lumsden said that Troy had a set of keys to the house and had previously stayed in the room that Allison used as her bedroom. Lumsden testified that it was possible that Troy came in the middle of the night, tried to sleep on the couch, assaulted Allison, and then left. Lumsden testified that the only thing Allison had ever said about Troy was that he had tickled her; Lumsden had never heard any allegations about Troy.

Lumsden admitted that he could not explain the DNA evidence. Lumsden testified that his son John did not sexually assault Allison and that none of his other patrilineal relatives were in his home on the night in question.

Lumsden gave a statement to Deleon when he was arrested. When confronted with the statement he gave at that time, which said that Kelly was sick downstairs with Allison and David when he got home from work around 9:00 p.m., Lumsden said it was possible that he had previously said that. Lumsden did not recall telling Deleon that Kelly went to bed fifteen minutes before Lumsden went to bed.

Lumsden recalled that he had given a statement to someone at Child Protective Services. The prosecutor recounted that Lumsden had told CPS that Kelly was in bed when he got home at 9:00; that she got out of bed, ate, and was groggy; that he and David went to bed; and that Allison was downstairs on the couch. Lumsden testified that was the exact same thing that he had told Deleon, except the fact that she got up and ate. Lumsden testified that he did not really know what he had told Deleon because he had guns pointed at his face, but he recalled telling Deleon specifically that Kelly was in bed when he got home and that she had been in bed all day because she was sick and taking pills that had been prescribed to her.

When confronted with the letter that he had written to his ex-wife Lindsey, whom he had told that he and David had gone upstairs together at 10:30 p.m. on the night in question, Lumsden explained that there was maybe a fifteen-minute gap between the time that he and David went to bed that night.

Lumsden agreed that in the statements he had made to Deleon, the CPS worker, and Lindsey, he had said that at some point, there was a room full of people-including John, David, Elliott, and Kelly-and that Allison had made allegations against her grandpa and her father. When confronted with David, Elliott, and John's trial testimony that Allison had never made that allegation, Lumsden said that maybe they did not hear her say it or did not remember that she had said it.

On cross-examination, Lumsden did not contest the fact that Allison had been sexually assaulted on or about March 10, 2015; that the only people in his home on the night in question were Kelly, Allison, David, and Lumsden; and that there was no testimony that Troy was anywhere near Lumsden's home on the night in question.

N. Rebuttal Witnesses

During rebuttal, the State called three of Lumsden's ex-wives, his daughter Anna, Kelly, an employee of the Denton probation department, Deleon, and a Flower Mound police officer-all of whom expressed their opinions that Lumsden was untruthful.

III. Sufficiency of the Evidence

In his first issue, Lumsden argues that the evidence is insufficient to support his conviction for criminal solicitation of a minor.

A. 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) ; Jenkins v. State , 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). 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. Jackson , 443 U.S. at 319, 99 S.Ct. at 2789 ; Jenkins , 493 S.W.3d at 599.

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) ; Blea v. State , 483 S.W.3d 29, 33 (Tex. Crim. App. 2016). 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 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). We must presume that the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution. Id. at 448-49 ; see Blea , 483 S.W.3d at 33.

B. Applicable Law

As applicable in this case, a person commits the offense of criminal solicitation of a minor if, with intent that indecency with a child be committed, he requests, commands, or attempts to induce a minor to engage in specific conduct that, under the circumstances surrounding the actor's conduct as the actor believed them to be, would constitute indecency with a child. Tex. Penal Code Ann. §§ 15.031(a), 21.11(a). However, a person may not be convicted of criminal solicitation of a minor on the uncorroborated testimony of the minor allegedly solicited "unless the solicitation is made under circumstances strongly corroborative of both the solicitation itself and the actor's intent that the minor act on the solicitation." Id. § 15.031(c).

The corroboration required under the criminal solicitation statute is analogous to the corroboration requirement found in the accomplice-witness statute. Compare id. , with Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005) ; see Richardson v. State , 700 S.W.2d 591, 594 (Tex. Crim. App. 1985). Due to the similarities between these two statutes, the test for evaluating the sufficiency of the corroboration evidence is the same under each. Richardson , 700 S.W.2d at 594. In assessing the sufficiency of the evidence corroborating the victim's testimony, the test requires that we eliminate the minor victim's testimony from consideration and then determine whether there is other incriminating evidence tending to connect the accused with the crime. Id. The tends-to-connect standard presents a low hurdle for the State because the evidence need not directly link the accused with the crime or be sufficient in itself to establish guilt. See Brown v. State , 270 S.W.3d 564, 567 (Tex. Crim. App. 2008), cert. denied , 556 U.S. 1211, 129 S.Ct. 2075, 173 L.Ed.2d 1139 (2009) ; Dowthitt v. State , 931 S.W.2d 244, 249 (Tex. Crim. App. 1996).

C. Analysis

Here, eliminating Allison's testimony from consideration, we conclude that the State presented other evidence that tends to connect Lumsden with the offense of criminal solicitation of a minor. Kelly noted unusual behavior and a change in Allison's demeanor when she awoke her the morning after the sexual assault. Kelly testified that when she asked Allison if she had touched Lumsden, Allison replied, "He asked me if I wanted to, but I said no." Similarly, Nurse Carriker testified that Allison told her that Lumsden wanted her to touch his private parts, but she said no. And during the forensic interview, Allison said that Lumsden had asked her to touch his pee part, but she told him no.

Additionally, Lumsden's description of what he was wearing on the night in question matched the description that Allison had given during her forensic interview. Lumsden admitted that he had given Allison red Jell-O, and the search of Lumsden's residence revealed an empty single-serving carton of Jell-O in the trash, as well as a pillow and a blanket on the couch where Allison had slept. Lumsden's testimony, as well as David's testimony, demonstrated that there was a period of time when Lumsden was alone with Allison on the couch after David went to bed.

As the sole judge of the weight and credibility of the evidence, the jury had before it testimony from multiple individuals that Lumsden was not truthful; similarly, the jury had before it evidence that Allison was credible because her allegations of penetration by Lumsden had been corroborated with physical findings during the sexual assault examination and DNA evidence. Moreover, the testimony from Kelly, Nurse Carriker, David, Lumsden, and the investigators who searched Lumsden's residence, as well as the video of the forensic interview, tends to connect Lumsden with criminal solicitation of Allison, who was a minor. Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found beyond a reasonable doubt that Lumsden solicited Allison, a minor. See Thompson v. State , No. 07-12-00454-CR, 2014 WL 4807581, at *4 (Tex. App.-Amarillo Sept. 19, 2014, pet. ref'd) (mem. op., not designated for publication) (holding that testimony of appellant, victim's sister, nurse examiner, and recorded conversation constituted sufficient evidence tending to connect appellant with criminal solicitation of R.S., a minor); Lankford v. State , 255 S.W.3d 275, 277 (Tex. App.-Waco 2008, pet. ref'd) (holding that testimony from multiple witnesses, including appellant, corroborated the solicitation). We overrule Lumsden's first issue.

IV. Motion to Suppress

In his second issue, Lumsden argues that the trial court reversibly erred by denying his motion to suppress evidence alleged as DNA.

A. Standard of Review

When reviewing the trial court's ruling on a motion to suppress, we must view the evidence in the light most favorable to the trial court's ruling. Wiede v. State , 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) ; State v. Kelly , 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports those fact findings. Kelly , 204 S.W.3d at 818-19. We then review the trial court's legal ruling de novo unless its explicit fact findings that are supported by the record are also dispositive of the legal ruling. Id. at 818.

B. Applicable Law

Rule of evidence 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence. Tex. R. Evid. 403. In a proper rule 403 analysis, the trial court must balance the inherent probative force of the proffered item of evidence, along with the proponent's need for that evidence, against (1) any tendency of the evidence to suggest decision on an improper basis, (2) any tendency of the evidence to confuse or distract the jury from the main issues, (3) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (4) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State , 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). The Texas Court of Criminal Appeals has cautioned that in reviewing the trial court's rule 403 balancing determination, we are to "reverse the trial court's judgment 'rarely and only after a clear abuse of discretion.' " Mozon v. State , 991 S.W.2d 841, 847 (Tex. Crim. App. 1999).

C. What the Record Shows

The trial court held a pretrial hearing on Lumsden's motion to suppress evidence alleged as DNA. The trial court asked for clarification on the basis for Lumsden's motion, and he agreed that he was arguing under rule 403 that the DNA evidence would be unfairly prejudicial to him because "it identifies Mr. Lumsden and any of his male heirs."

Capt, the State's DNA expert who testified at trial, also testified at the pretrial hearing. Capt testified that the swabs taken from Allison had been compared to the DNA samples from Lumsden for Y chromosome STR markers and that nine of seventeen alleles were found. Capt recognized that those nine alleles would also match Lumsden's male heirs. Capt testified that using the DNA printout scale, evidence of only one male was detected in Allison's sample. On cross-examination, Capt testified that 0.06% of the population would share the Y STR markers in their partrilineal lineage.

The trial court stated its conclusion on the record:

In regards to the objection under 403, while I understand that certainly it could be a valid argument that there's someone else in Mr. Lumsden's line or his heirs on his male side, I do believe that that would be proper cross-examination or proper argument. But in regards to whether or not I would exclude the evidence because the probative value substantially is outweighed by the danger from any type of unfair prejudice or confusing the issues or anything of that nature, I can't find that it would violate 403 and would simply overrule the grounds based upon that.

The trial court also signed an order denying Lumsden's motion to suppress.

D. Analysis

Considering the first factor in the 403 analysis, the probative value of the DNA evidence is high. Lumsden's defensive theory at trial was that because Allison was asleep and because it was dark, she did not see her attacker, whom he claimed was Troy. Because Allison described being alone with Lumsden, her credibility was central to the State's case. The DNA evidence-showing that the DNA found in the swab from Lumsden matched nine of seventeen alleles in Allison's vaginal swab and that only one male was detected as the contributor for the Y STR in Allison's vaginal swab-corroborated Allison's testimony and was therefore probative of Lumsden's guilt. Lumsden's argument-that the probative value of the DNA evidence is minimal because it could not be positively matched only to Lumsden but could match with any male in his patrilineal lineage-is not persuasive; the evidence showed that no other male relative of Lumsden's was in the house on the night in question and that Lumsden affirmatively testified that his son John did not sexually assault Allison. The probative value of the DNA evidence was therefore anything but minimal.

With regard to the second factor, although the DNA evidence in this case is certainly prejudicial, it is not unfairly prejudicial because it provides circumstantial proof of at least one of the charged offenses. See Dossett v. State , 216 S.W.3d 7, 22 (Tex. App.-San Antonio 2006, pet. ref'd) ("The prejudicial nature of the DNA evidence was no higher than other inculpatory scientific evidence[ ] and was not unfairly prejudicial."). Under these circumstances, the DNA evidence presented was not such that it would tempt the jury to come to irrational conclusions.

The third factor-the time needed to develop the evidence-does not weigh in favor of Lumsden. The trial transcript demonstrates that Capt's testimony, including cross-examination by Lumsden, spanned only thirty-one pages of the over 600 pages of the guilt-innocence phase of the trial. In its opening statement, the State briefly mentioned that the SANE had obtained vaginal and anal swabs from Allison and later told the jury that Capt would testify that "she cannot exclude Ray Lumsden or any patrilineal relatives, meaning Ray Lumsden or his dad or his son." Lumsden argues on appeal that the State did not qualify its argument in rebuttal to say that the DNA belonged to Lumsden "or ... a patrilineal relative" but instead stated that the DNA belonged to Lumsden. Lumsden did not object to that statement, nor would an objection have been sustained because it was a proper summation of what the evidence at trial had shown-that Lumsden's son John did not commit the sexual assault of Allison and that no patrilineal relative of Lumsden's was in the home on the night in question. Moreover, because the DNA evidence linked Lumsden to Allison in a manner consistent with her testimony, the jury would not have been distracted from the indicted offense.

With regard to the final factor-the State's need for the evidence-the court of criminal appeals has held that a proponent's need for evidence is great when there is a disputed issue and the proponent has no other evidence to prove the fact at issue. See Manning v. State , 114 S.W.3d 922, 928 (Tex. Crim. App. 2003). That is the situation here. Troy did not testify at trial, so there was no way to disprove Lumsden's defensive theory that Troy came during the middle of the night, sexually assaulted Allison, and left before anyone awakened in the morning. But the discovery of DNA from Lumsden in the vaginal swabs taken from Allison disputes his theory. Thus, the State's need for the DNA evidence is great.

Because the four factors weigh in favor of admission of the DNA evidence and because the probative value of the DNA evidence was not substantially outweighed by the danger of unfair prejudice, we hold that the trial court did not abuse its discretion by admitting the DNA evidence. See Dossett , 216 S.W.3d at 22 (holding that trial court did not abuse its discretion by finding that the probative value of DNA evidence was not substantially outweighed by the danger of unfair prejudice); Jean v. State , No. AP-76, 2013 WL 3282956, at *8 (Tex. Crim. App. June 26, 2013) (not designated for publication) (holding that although DNA evidence did take some time to develop due to its complexity, "that factor is more than outweighed by the others"), cert. denied , 571 U.S. 1166, 134 S.Ct. 1008, 187 L.Ed.2d 856 (2014) ; Rivera v. State , No. 03-04-00235-CR, 2005 WL 1240705, at *4 (Tex. App.-Austin May 26, 2005, no pet.) (mem. op., not designated for publication) (holding that trial court did not abuse its discretion by admitting DNA evidence because all four factors weighed in favor of admission). And because unfair prejudice under rule 403 was the sole basis of Lumsden's motion to suppress the DNA evidence, we further hold that the trial court did not err by denying Lumsden's motion to suppress the evidence alleged as DNA. We overrule Lumsden's second issue.

V. Expert Expenses

In his third issue, Lumsden argues that the trial court reversibly erred by refusing to give prior approval for expenses related to expert testimony that Lumsden incurred in the presentation of his defense.

A. Applicable Law

In Ake v. Oklahoma , the United States Supreme Court held that due process may require that an indigent defendant be granted access to expert assistance if the expert can provide assistance which is "likely to be a significant factor at trial." Ex parte Jimenez , 364 S.W.3d 866, 876 (Tex. Crim. App. 2012) (citing Ake , 470 U.S. 68, 74, 105 S.Ct. 1087, 1091-92, 84 L.Ed.2d 53 (1985) ), cert. denied , 568 U.S. 1085, 133 S.Ct. 834, 184 L.Ed.2d 651 (2013). Before an indigent defendant is entitled to appointment and payment by the State for expert assistance, he must make a pretrial "preliminary showing" that is based upon more "than undeveloped assertions that the requested assistance would be beneficial." See id. at 881 (citations omitted). Thus, in Texas, an indigent defendant will not be entitled to funding for experts absent adequate factual support in the written motion that he presents to the trial judge. Id.

A trial judge does not err by denying an informal, off-the-record request for additional funding for experts when he is not presented with a written motion that contains affidavits or other evidence that would support the defendant's request. Id. at 882. Moreover, we cannot review the merits of an Ake claim if the defendant failed to file a proper pretrial motion that the trial judge denied. Id.

B. What the Record Shows

In July 2016, Lumsden filed a motion for approval of funds for experts and requested $6,000. The trial court approved $3,000 for the services of experts without prejudice to additional requests if necessary. Although Lumsden filed motions after this requesting funds for investigators, he did not file any other written motions requesting funds for expert witnesses.

At the pretrial hearing on September 2, 2016, Lumsden made an oral request for the trial court to grant an additional $1,500 for a DNA expert to travel from California to be present at the trial. When the trial court inquired whether there were any experts that Lumsden could hire from Texas to avoid an additional out-of-state fee, Lumsden's counsel responded that there were "plenty of experts I could have hired" but that Lumsden had "specifically demanded that we hire this specific expert from California." The trial court stated that it was not going to make a dispositive ruling on Lumsden's oral motion but would take the matter under advisement. The record does not show that the trial court ever ruled on Lumsden's oral request for expert funds.

The clerk's record contains a handwritten letter addressed to the judge and dated September 14, 2016, but filed September 23, 2016. In the letter, Lumsden states that his attorney "refuses to enter the DNA report of our court[-]approved expert, and he failed to have her here to testify.... Being indigent, I needed her here, but my lawyer said that you repeatedly denied providing funds to her travel expenses!?" Lumsden also raised this issue in his motion for new trial.

C. Analysis

Here, the record demonstrates that Lumsden did not file a proper pretrial motion with the appropriate affidavits or other evidence supporting his request for funding to pay for a DNA expert. Lumsden has thus forfeited consideration of his Ake claim on appeal by failing to file a proper written Ake motion in the trial court. See id. (holding that applicant forfeited consideration of her Ake claim by failing to file a proper written Ake motion and ensuring that the trial judge formally ruled on it). Accordingly, we overrule Lumsden's third issue.

VI. Evidentiary Challenges

In his fourth through tenth issues and in his twelfth issue, Lumsden challenges the trial court's rulings on objections to various testimony and to the admission of State's Exhibit Nos. 4, 13, and 30. Because these issues challenge evidentiary rulings, we set forth the applicable standard of review only once and refer to it, as necessary, in our analysis of each of these issues.

A. Standard of Review

We review a trial court's evidentiary rulings under an abuse-of-discretion standard. See Jenkins , 493 S.W.3d at 607. A trial judge's decision is an abuse of discretion only when it falls outside the zone of reasonable disagreement. Winegarner v. State , 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). An evidentiary ruling will be upheld if it is correct on any theory of law applicable to the case. Gonzalez v. State , 195 S.W.3d 114, 126 (Tex. Crim. App.), cert. denied , 549 U.S. 1024, 127 S.Ct. 564, 166 L.Ed.2d 418 (2006).

If we find error, we must conduct a harm analysis to determine whether the error calls for reversal of the judgment. Tex. R. App. P. 44.2. If the error is constitutional, we apply rule 44.2(a) and reverse unless we determine beyond a reasonable doubt that the error did not contribute to appellant's conviction or punishment. Tex. R. App. P. 44.2(a). Otherwise, we apply rule 44.2(b) and disregard the error if it did not affect appellant's substantial rights. Tex. R. App. P. 44.2(b) ; see Mosley v. State , 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh'g), cert. denied , 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999).

A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States , 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946) ). Conversely, an error does not affect a substantial right if we have "fair assurance that the error did not influence the jury, or had but a slight effect." Solomon v. State , 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) ; Johnson v. State , 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). In making this determination, we review the record as a whole, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, and the character of the alleged error and how it might be considered in connection with other evidence in the case. Motilla v. State , 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

B. Admission of Outcry Statements

In his fourth issue, Lumsden argues that the trial court reversibly erred by admitting Allison's outcry statements through the testimony of her mother. Lumsden contends that the outcry statements constitute hearsay and do not fall within the purview of article 38.072.

1. Applicable Law

Hearsay is generally inadmissible. See Tex. R. Evid. 802. But Texas Code of Criminal Procedure article 38.072 provides, in relevant part, that a statement is not inadmissible on the basis that it is hearsay if (1) the statement describes an offense under chapter twenty-one of the penal code that a defendant committed against a child younger than fourteen years of age; (2) the statement was made by the child to the first person who was eighteen years old or older, other than the defendant, that the child spoke to about the offense; and (3) the "trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement." Tex. Code Crim. Proc. Ann. art. 38.072, §§ 1(1), 2 (West Supp. 2018). Indicia of reliability that a trial court may consider include:

(1) whether the child victim testifies at trial and admits making the out-of-court statement[;] (2) whether the child understands the need to tell the truth and has the ability to observe, recollect, and narrate[;] (3) whether other evidence corroborates the statement[;] (4) whether the child made the statement spontaneously in his own terminology or whether evidence exists of prior prompting or manipulation by adults[;] (5) whether the child's statement is clear and unambiguous and rises to the needed level of certainty[;] (6) whether the statement is consistent with other evidence[;] (7) whether the statement describes an event that a child of the victim's age could not be expected to fabricate[;] (8) whether the child behaves abnormally after the contact[;] (9) whether the child has a motive to fabricate the statement[;] (10) whether the child expects punishment because of reporting the conduct[;] and (11) whether the accused had the opportunity to commit the offense.

Gonzales v. State , 477 S.W.3d 475, 479 (Tex. App.-Fort Worth 2015, pet. ref'd). With regard to the fourth indicia of reliability, spontaneity is a consideration relevant to the reliability of the outcry, but it is not a requirement for admissibility in and of itself. See Thomason v. State , No. 07-97-00146-CR, 1998 WL 761883, at *7 (Tex. App.-Amarillo Nov. 2, 1998, pet. ref'd) (not designated for publication).

2. Relevant Portion of the Record

The record demonstrates that the trial court held a hearing outside the jury's presence on the admissibility of Allison's statement to her mother. Both Allison and Kelly testified during the outcry hearing.

Allison testified that her mother, who is over the age of eighteen, was the first person she told. Allison explained that when her mother came in to wake her up the morning after the incident, she told her mother that she and Lumsden had spent some time together the night before and that something was wrong. Allison said that her mother then asked if Lumsden had touched her privates.

Kelly testified at the hearing that on the night of the incident, she had a kidney infection, took a muscle relaxer, and went to bed early. When Kelly went downstairs the next morning, she saw that Allison was asleep on the couch, which was unusual because she never slept on the couch. Kelly woke up Allison and asked her if she felt okay. Allison said that she was really tired because she and Lumsden had stayed up really late the previous night and had a lot of fun. Kelly asked Allison what she and Lumsden had done the night before, and Allison said that it was a secret. Kelly told Allison that she should not keep secrets from her, and Allison confessed that she and Lumsden had eaten Jell-O and cookies even though she knew that Kelly did not like Allison to have sugar at night.

Kelly asked Allison what else they had done, and Allison said that was a big secret that she could not tell Kelly. Kelly said that Allison's demeanor completely changed and that "[s]he looked scared. She looked tightened up. She wasn't acting normal." Kelly asked Allison what the secret was and promised her that she would not be mad. Allison said that Lumsden had told her that she could never tell Kelly because she would be really mad. Kelly testified that Allison had a look on her face that she had never seen before. Because Kelly had "a really bad gut feeling that something was really wrong," she asked Allison if Lumsden had touched her. In response, Allison held up two fingers and said, "Two places." Allison pointed to her private areas and said, "My privates and my bum." Kelly asked whether the touching was on the inside or the outside of Allison's panties, and Allison said the inside. Allison said that Lumsden had put his fingers inside of her in two places and asked her if she liked it, and she said no.

3. Analysis

Lumsden challenges only the fourth indicia of reliability set forth above, arguing that Allison's statements to her mother were not reliable because Allison "did not make the 'outcry' statement spontaneously in her own terminology but was responding to her mother's leading question." Although the testimony from the hearing outside the presence of the jury indicates that the outcry statement was not made spontaneously, Kelly's question to her daughter regarding whether Lumsden had touched her did not show that she prompted Allison as to the substance of the outcry. Allison's response provided the details about where and how Lumsden had touched her. There was no evidence in the record that Kelly had coached or had manipulated Allison into fabricating a statement about Lumsden. The undisputed evidence demonstrated that Lumsden had the opportunity to commit the offense related in the outcry statement while Kelly was in bed with a kidney infection. The circumstances surrounding the outcry-that Allison told Kelly during their initial conversation the following morning-indicate that the outcry was reliable.

Because spontaneity is not a requirement for admissibility in and of itself and because Lumsden does not challenge the other ten indicia of reliability, we conclude that Allison's outcry statement to her mother was sufficiently reliable to be admissible. See Barker v. State , No. 07-17-00024-CR, 2018 WL 3637262, at *2-3 (Tex. App.-Amarillo July 31, 2018, pet. filed) (mem. op., not designated for publication) (concluding that outcry statement was reliable despite fact that statement was not spontaneous); Davidson v. State , 80 S.W.3d 132, 139 (Tex. App.-Texarkana 2002, pet. ref'd) (holding outcry statement was reliable despite fact that victim was prompted and encouraged to tell what secret she was keeping); Thomason , 1998 WL 761883, at *7. Accordingly, we hold that the trial court did not abuse its discretion by admitting Allison's outcry statement through Kelly, and we overrule Lumsden's fourth issue.

C. Admission of Allison's Statements Made to Nurse Carriker

In his fifth issue, Lumsden argues that the trial court reversibly erred by admitting hearsay statements that Allison made to Nurse Carriker. Lumsden contends that Allison's statements to Nurse Carriker were not admissible as outcry statements under article 38.072 and were not admissible under the medical-diagnosis-or-treatment exception to the hearsay rule.

1. Applicable Law

Under rule 803(4), a hearsay statement is admissible if the statement is made for-and is reasonably pertinent to-medical diagnosis or treatment and describes medical history; past or present symptoms or sensations; their inception; or their general cause. Tex. R. Evid. 803(4). To establish this exception, normally the proponent of the evidence must show that the out-of-court declarant was aware that the statements were made for purposes of medical diagnosis or treatment and that proper diagnosis or treatment depended upon the veracity of the statements. Taylor v. State , 268 S.W.3d 571, 588-89 (Tex. Crim. App. 2008). The proponent must also show that the statements are pertinent to diagnosis or treatment, i.e., that it was reasonable for the care provider to rely on the statements in diagnosing or treating the declarant. Id. at 591.

The Texas Court of Criminal Appeals has observed that "it seems only natural to presume that adults, and even children of a sufficient age or apparent maturity, will have an implicit awareness that the doctor's questions are designed to elicit accurate information and that veracity will serve their best interest." Id. at 589. Thus, the court of criminal appeals recognized "the almost universal tendency of courts under these circumstances to assay the record, not for evidence of such an awareness, but for any evidence that would negate such an awareness, even while recognizing that the burden is on the proponent of the hearsay to show that the [r]ule 803(4) exception applies." Id. The court of criminal appeals has therefore not required the proponent of statements to a SANE to affirmatively demonstrate that the declarant was aware of the purpose of the statements and the need for veracity. See id. ; Swofford v. State , Nos. 12-14-00081-CR, 12-14-00082-CR, 2015 WL 7019762, at *3 (Tex. App.-Tyler Nov. 12, 2015, no pet.) (mem. op., not designated for publication); see also Franklin v. State , 459 S.W.3d 670, 677 (Tex. App.-Texarkana 2015, pet. ref'd) ("[U]nlike statements made to non-medical professionals, which require affirmative evidence in the record on the issue of veracity, courts can infer from the record that the victim knew it was important to tell a [SANE] the truth in order to obtain medical treatment or diagnosis."); Beheler v. State , 3 S.W.3d 182, 188 (Tex. App.-Fort Worth 1999, pet. ref'd) ("[T]here is no requirement that a witness expressly state that the hearsay declarant recognized the need to be truthful in her statements for the medical[-] treatment exception to apply.").

2. Relevant Portion of the Record

During the outcry hearing that was held outside the presence of the jury, Allison testified on cross-examination that she remembered going to a hospital or doctor's office but that she did not ask to go to the doctor's office. Defense counsel's cross-examination of Allison continued as follows:

Q. You weren't -- you didn't have a broken arm or a broken leg. You have seen children that have broken arms or broken legs [,] and they go to a doctor and get a cast or something on them?

A. Yes.

Q. And so you know they've been hurt[,] and they go to a doctor to get well. You know that. Correct?

A. Yes.

Q. And sometimes when you're sick and you're throwing up, sometimes your parents take you to a doctor to get you medicine that you have to take to get well. Right?

A. Yes.

Q. And you would know if you were sick or hurt, wouldn't you?

A. Yes.

Q. So when your mom took you to this big medical building, were you asking to see a doctor or a nurse because you were sick or hurt?

A. No, I wasn't asking.

Q. Okay. You were asked several questions by a lady there. Do you remember that?

A. Yes.

Q. And you didn't know why they were asking you those questions, did you?

A. No.

Q. Because you weren't telling them you were hurt and needed medical attention or treatment or because you were sick or injured. Right?

[The State's objection was sustained.]

Q. (BY [DEFENSE COUNSEL] ) I mean, you didn't tell your mom you were hurt and you needed to go see the doctor. Right?

A. I can't remember.

When the State questioned Allison on rebuttal about going to the hospital, she said she remembered talking to a nurse named Julie and telling her what Lumsden had done to her.

Nurse Carriker also testified at the hearing. Nurse Carriker testified that she had performed a sexual assault examination on seven-year-old Allison at Denton Regional Medical Center. When Nurse Carriker asked Allison why she was at the hospital, Allison said that she was there because Lumsden