ARTHUR DEON DAVIS v. THE STATE OF TEXAS (2023)

OPINION

Appellant, Arthur Deon Davis, appeals his conviction of two counts of sexual assault of a child.¹ TEX. PENAL CODE ANN. 22.011(a)(2). In a single issue, Appellant challenges the trial court's admission of a 911 call recording. We affirm.

BACKGROUND

Factual Background

Rachel, the complainant in this case, was close with her cousins and her aunt, and visited them often during the summer of 2019.  ² Her cousins were Ally, Alex, and Aaron, and they all lived with their mother, Bridget Martinez, who was Rachel's aunt. Appellant was dating Rachel's aunt and living with her and her children at the time of the assault.

A. The sexual assault

On or around August 10 or 11 of 2019, Rachel spent the night at her aunt's house and slept in her cousin Ally's room. When she woke up in the morning, her aunt was at the grocery store and her cousins were still asleep in their rooms. Rachel was in the living room with Appellant when he asked her if she wanted a summer job. She told him she did, and that she had been saving money. Appellant told Rachel it was a job that included working with guns, selling drugs, having women on the corners of streets, and dancing. Rachel expressed she was not interested but asked Appellant more questions. At this point, Appellant suggested to Rachel that they continue the conversation in her aunt's bedroom, and Rachel followed. When they got to her aunt's bedroom, Appellant said he was going to call his friend about the job. Appellant made the call while Rachel sat on her aunt's bed.

Rachel was able to identify the person on the phone as a male, but she could not make out everything that was said. During the phone call, Appellant and Rachel were both sitting on the bed, side by side. Rachel overheard the man on the phone say something along the lines of “check it out” and remembers the man saying the word “test,” which Rachel interpreted as him telling Appellant to test her out.

Rachel then asked Appellant for Advil because she had woken up with a headache. There was a recliner inside of her aunt's room and Appellant reached inside the storage compartment of the recliner and gave Rachel a pill from an unlabeled prescription bottle. Rachel described the pill as about an inch long, sparkly with markings on it, and was “definitely bigger than a regular ibuprofen or an Advil pill.” Rachel took the pill.

Appellant continued talking to his friend on the phone about the job and Rachel sat in silence trying to listen to what they were saying. As she sat and listened, she began to feel what she described as “having super low blood pressure ․ and you're about to pass out ․ your hearing starts to go out and your eyes start to get all fuzzy and you can't really see or make out what you see ․ I couldn't hear. My hearing started to go out, and my ears were ringing. And visually-wise, I -- I guess you could call it hallucinating, but I wasn't seeing things. I was just -- the colors were more distorted. And I felt very heavy. I felt very heavy. Very tired.” Rachel felt she did not have control over her mental and physical abilities—she explained she tried to talk but could not get the words out.

Rachel remembered hearing the man on the phone ask Appellant what she tasted like. Appellant pushed Rachel's shoulder back until Rachel was laying flat on her back with her legs hanging over the edge of the bed. Appellant reached inside of her shorts, put his fingers inside of her vagina, then put his fingers in his mouth and told the man on the phone it “was good.” Appellant also touched Rachel's chest and her torso.

Rachel explained she could not move and felt heavy. Appellant continued talking to the man on the phone, but Rachel could not hear what was being said. Appellant then stood in between Rachel's legs with his hand over her mouth as she tried to talk. Appellant pulled her shorts down and put his penis inside her vagina and sexually assaulted her while he was still on the phone. Rachel described the back-and-forth movements as “sex” and when Appellant was finished, he told her not to tell her aunt, pulled his shorts up, and left the room. Throughout the assault, Rachel recalled Appellant looking mad and she felt scared and was in pain.

After Appellant left the room, Rachel pulled her shorts up and fell asleep. She woke up hours later, in the evening. She did not initially remember what had happened with Appellant, but felt soreness throughout her body, especially in between her legs. She called her mom to pick her up, telling her mom that she did not feel well. When Rachel got home, she went to her bedroom and slept some more. She woke up the next morning feeling groggy and sore, and took a shower.

B. The outcry

Days later, she began to remember the sexual assault and over the course of the week, her memory came back in “bits and pieces,” and she was able to recall what happened. Rachel explained she was afraid to tell anyone because she knew what Appellant was capable of, did not want to burden anyone, feared how she would be perceived, and was nervous about what actions her father would take against Appellant. Rachel especially thought about the role Appellant served in her aunt's life—Appellant helped care for her aunt's autistic son—and knew how much Appellant meant to her aunt and did not want to take that away.

Rachel stayed silent and overtime, stopped going to school and fell into a depressed state. Rachel was at risk of losing class credit due to her attendance, which had never before been an issue. In November of that year, Rachel confided in her cousin Ally about the sexual assault. Rachel also eventually told her aunt. Rachel's aunt told her she would not tell her parents because it was not her story to tell, but assured Rachel she would be there for her.

Later, in December, Rachel was at school when her mom told her to go to the front desk because her sister was in labor, and they all needed to go to the hospital. Rachel became consumed with emotion thinking she was going to miss the delivery of her niece and was found crying on the ground by an office aide. Rachel was taken to the counselor's office and eventually told the counselor about the sexual assault. The counselor called Rachel's parents, the SRO officer, Child Protective Services, and the police.

C. Law enforcement response and investigation

Rachel was picked up from school by her dad and they met Corporal Arika Austin of the Austin Police Department at a Whataburger restaurant, where a report of the assault was taken. Rachel named Appellant as the man who raped her and provided a physical description of him. Rachel's dad then took her to the hospital to meet her newborn niece. While at the hospital, Rachel was told that a non-acute SANE exam would not be very helpful because it had been so long since the assault. Instead, Rachel's mom later took Rachel to an OB/GYN to have her tested for sexually transmitted diseases and to the Hays County Women's Center, where a forensic interview was conducted.

Detective Amanda Wiese of the Austin Police Department was assigned to investigate the case. It was one of Detective Wiese's first cases and she acknowledged in her testimony that there were several investigative steps she should have done differently. She watched the recording of Rachel's forensic interview in early December, but had not watched the recording of Rachel's initial report to the patrol officer at Whataburger. She spoke to Rachel's mom about a non-acute SANE exam, but did not encourage the family to have one conducted and did not thereafter follow up. A non-acute SANE exam was never conducted.³

Detective Wiese admitted making mistakes in the investigation, such as failing to preserve bodycam footage and photographs of the duplex where the assault occurred. She did not note the thickness of the walls in the duplex or request a crime scene specialist to process any part of the home. Detective Wiese did not attempt to gather any clothing worn by Rachel at the time of the assault or any bedding in the home for potential DNA testing. She did not search the home for pills or pill bottles. She also did not pursue hair follicle testing of Rachel for drug testing. Although she attempted to speak to Appellant over the phone and left a voicemail, she did not attempt to interview him in person either before or after his arrest. Detective Wiese did not attempt to obtain Appellant's cell phone, or any call data records for Appellant.

D. The suicide attempt

On the morning of January 20, 2020, Rachel woke up late and noticed her older sister had left to school without her. Rachel did not care and decided to stay home. She found pills—amoxicillin and acetaminophen—and took some. She immediately regretted it and called the suicide help line, and EMS arrived shortly after. EMS transported Rachel to the hospital, where Rachel reported the sexual assault and that she had been self-harming leading to her suicide attempt. Rachel continued to endorse suicidal ideation in the hospital and was admitted for inpatient care at a psychiatric hospital. Rachel remained under psychiatric care for two months and was diagnosed with depression and anxiety.

E. The 911 recording

During Rachel's testimony, the trial court dismissed the jury for a recess and heard Appellant's objections to the admission of a 911 recording made during Rachel's suicide attempt. Appellant lodged Texas Rule of Evidence 401, 402, and 403 objections, challenging the relevance of the recording and recording's prejudicial impact. The State responded the recording was relevant to Rachel's state of mind and the aftermath of the sexual abuse by Appellant, maintained it was more probative than prejudicial because Rachel would be “strenuously cross-examined about her reactions, her demeanor, her temperament, anything and everything that is contextual to her claim of rape,” and argued the recording constituted a hearsay exception as an excited utterance and present sense impression of her then existing mental and physical condition. After hearing the recording, the trial court ruled:

Yeah, I -- it definitely falls within the hearsay exception, so then the only question is whether it is more probative than it is prejudicial, and I believe that it is. I agree with the State's position that, you know, trauma is, indeed, an injury of sexual assault. Oftentimes, the defense will be able to cross-examine her to see whether or not this trauma was actually a result of that or other things going on in her life, but I believe that it's relevant; and I do not believe that the prejudicial effects outweighs the probative value, so I will allow it in.

The 911 recording was then admitted.

Rachel called a suicide hotline and spoke to the operator, who then called 911. The first minute and forty seconds of the recording consists of the suicide hotline operator contacting 911, then updating the 911 operator—the suicide hotline operator provides the 911 operator with Rachel's name and informs him that Rachel has attempted suicide and has consumed several amoxicillin pills. One minute and forty-two seconds into the recording, Rachel is conferenced in and speaks to the 911 operator. The 911 operator asks Rachel how long ago she took the pills, whether she intentionally took the pills, asks for age, and whether she is home alone. The 911 operator asks whether she will cooperate with EMS once they arrive, and Rachel responds she will.

Four minutes into the recording, Rachel is no longer crying and sounds calmer. Rachel is then asked to put the rest of the pills down and Rachel begins to cry and says she wants to take more pills “so badly.” The suicide hotline operator tells Rachel to go to another room and assures her that help is on the way. Rachel complies and continues to cry, telling the suicide hotline operator she does not want to end her life and the operator responds she is so glad Rachel called for help.

Six minutes into the recoding, the suicide hotline operator distracts Rachel by having her talk about her pets, then Rachel soon after becomes emotional again and says she wants to kill herself. Rachel is then asked to unlock the front door and at this point, Rachel seems calm again and is no longer crying. Rachel unlocks the door and the suicide hotline operator and Rachel begin to talk about the weather. Rachel admits she took a handful of more pills during the call. The suicide hotline operator instructs Rachel to go outside and close the front door, which Rachel does. At minute ten, responding officers and EMS arrive and Rachel agrees to talk to them. At timestamp 10:32, Rachel and the suicide hotline operator say goodbye and Rachel leaves the call. The 911 operator then provides the suicide hotline operator with the incident report number and the call ends.

Procedural Background

Appellant was charged by indictment for two counts of sexual assault of a child, and one count of indecency with a child by contact. TEX. PENAL CODE ANN. 22.011(a)(2), 21.11(a)(1). The indictment also provided three enhancement paragraphs. Appellant entered a plea of not guilty on all three counts and a plea of true to the enhancement paragraphs. The jury found Appellant guilty on both counts of sexual assault of a child and acquitted him on the count of indecency with a child. The jury assessed his punishment at 30 years confinement in the Texas Department of Criminal Justice Correctional Institutions Division, to run concurrently. This appeal followed.

DISCUSSION

Standard of Review and Applicable Law

A trial court's ruling on the admission of evidence is reviewed for an abuse of discretion. Robisheaux v. State, 483 S.W.3d 205, 217 (Tex. App. 2016). The trial court's ruling will only be disturbed “if it is so clearly wrong as to lie outside the zone of reasonable disagreement.” Id. (citing Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002) (internal quotation marks omitted)).

Under Rule of Evidence 403, the court has discretion to exclude evidence “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” TEX. R. EVID. 403. The probative value of evidence “refers to how strongly it serves to make the existence of a fact of consequence more or less probable.” Gonzalez v. State, 544 S.W.3d 363, 372 (Tex. Crim. App. 2018). While unfair prejudice refers to the undue tendency “to suggest decision on an improper basis,” such as an emotional one. Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006).

Under Rule 403, we presume the probative value of relevant evidence exceeds any danger of unfair prejudice. Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009). The exclusion of relevant evidence under Rule 403 is proper only if its probative value is substantially outweighed by the danger of unfair prejudice. See id. Specifically, Rule 403 “envisions exclusion of evidence only when there is a clear disparity between the degree of prejudice of the offered evidence and its probative value.” Id. (citing Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App.2001) (internal quotation marks omitted)). The Court of Criminal Appeals has established a proper Rule 403 analysis includes, but is not limited to, the following Montgomery factors:

(1) how probative is the evidence;

(2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way;

(3) the time the proponent needs to develop the evidence; and

(4) the proponent's need for the evidence

Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004) (citing Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex. Crim. App. 1990) (en banc).

We bear in mind that although these factors are reviewed for an abuse of discretion, a trial court's Rule 403 determinations are afforded “an especially high level of deference.” Robisheaux, 483 S.W.3d at 218 (quoting United States v. Fields, 483 F.3d 313, 354 (5th Cir. 2007)).

Analysis

In his sole issue on review, Appellant maintains the trial court abused its discretion by admitting the complaining witness's 911 recording over his Rule 403 objection. According to Appellant, the 911 recording lacks any reference to the sexual assault allegations, its prejudicial effect outweighed its probative value, and its admission “invited the jury to decide the case purely on emotion[,]” which impacted his substantial rights. We disagree.

A. Rule 403

(1) The first and fourth factors: probative value and proponent's need for the evidence

Probative value refers to “how strongly” the evidence “serves to make more or less probable the existence of a fact of consequence to the litigation—coupled with the proponent's need” for such evidence. Gigliobianco, 210 S.W.3d at 641. There are three questions we should consider in addressing the proponent's need: “Does the proponent have other available evidence to establish the fact of consequence that the [911 recording] is relevant to show? If so, how strong is that other evidence? And is the fact of consequence related to an issue that is in dispute?” Montgomery, 810 S.W.2d at 390.

As to the first question, before the 911 recording was admitted, Rachel and her parents testified generally about Rachel's attempted suicide. Rachel's dad testified Rachel “ran into some pretty significant mental health issues” when she attempted suicide, and briefly stated that on that day, Rachel stayed in the hospital for one day and was then transferred to a mental hospital, where she remained for about two months. He also testified that when he would visit Rachel, she would tell him she did not want to be there, which “broke [his] heart because [he] couldn't do nothing.” As for Rachel's mom, she testified Rachel “took a bunch of medication and tried to end her life[,]” provided the name of the hospitals she was taken to and how long her stays were at each, and shared that Rachel progressed after some time. This was the extent of Rachel's parents' testimonies regarding the suicide attempt.

As for Rachel, she testified about the morning of her suicide attempt and shared she did not want to be alive anymore, found pills and took them, then immediately thought to herself, “I don't want to be done yet.” Rachel testified she called the suicide help line for help and when asked why she was feeling so desperate, she responded,

Because I was scared of what took my strength I -- I was being made felt like a burden, an issue. Feeling like that for so long can only result in one of two things. Eliminating yourself from the problem or continue to be the problem, and I chose to eliminate myself from the problem[.]

She then briefly shared she was admitted to a mental hospital and continued therapy after being released. This is the extent of Rachel's testimony regarding her suicide attempt.

The State also admitted records from the Buda Fire Department and Dell Children's Medical Center, which documented Rachel's medical treatment following her suicide attempt. However, as to the second question, the strength of the other evidence, we hesitate to deem this other evidence as strong. Neither Rachel nor her parents provided what the 911 recording provided—i.e., the emotional trauma Rachel was suffering at the time. The State argued the 911 recording was “relevant to the victim's state of mind and the fallout of her sexual abuse by the defendant and her subsequent emotional meltdown because of that rape” and its admission would establish trauma evidence and demonstrate Rachel's credibility considering no other evidence existed. We agree. As to the third question—whether the fact of consequence was related to an issue in dispute—the answer is yes. Whether Rachel was sexually assaulted was an issue directly in dispute, which we articulate in more detail below.

The Texas Court of Criminal Appeals has recognized that trials involving sexual assault commonly raise evidentiary concerns “because the credibility of both the complainant and defendant is a central, often dispositive, issue.” Hammer, 296 S.W.3d at 561. It is usually a matter of “he said, she said” and as such, “the jury must reach a unanimous verdict based solely upon two diametrically different versions of an event, unaided by any physical, scientific, or other corroborative evidence.” Id at 561-62.

Here, there was no physical, scientific, or corroborative evidence to support Rachel's outcry. There was no physical evidence of the abuse, no DNA or drug testing, no eyewitness, or any other evidence to corroborate Rachel's account of the abuse. The detective failed to arrange a non-acute SANE exam, did not request a crime scene unit process of where the assault occurred, did not arrange a drug test in an effort to determine what pill Appellant gave Rachel on the day of the assault, did not interview Appellant either before or after he was arrested, and did not obtain any cell phone records.

Due to the lack of physical and corroborating evidence, the 911 recording was central to the State's case. As the Criminal Court of Appeals has observed,

[I]t is common knowledge that a victim of a sexual assault often suffers not only physical but psychological and emotional injuries․ Evidence of the victim's emotional and psychological state after the incident tends to buttress the victim's version of the sexual assault, especially so in cases such as the instant case where the defensive theory is that the sexual assault never occurred.

Brown v. State, 757 S.W.2d 739, 743 (Tex. Crim. App. 1988) (en banc) (McCormick, J., concurring) (emphasis added).

Here, Appellant's defensive theory at trial was that Rachel was not sexually assaulted; according to him, “[i]t never happened.” Admission of the 911 recording showed Rachel's psychological and emotional trauma, which buttressed that she was sexually assaulted and her version of the sexual assault. See id. Appellant argues the 911 recording had low probative value because Rachel did not mention sexual assault or name Appellant throughout the call. However, whether Rachel was sexually assaulted was a fact of consequence to the prosecution because Appellant denied that Rachel was ever sexually assaulted; thus, evidence tending to corroborate her allegations was relevant and vital to the State's case. See Arredondo v. State, No. 03-09-00489-CR, 2010 WL 4137425, at *4 (Tex. App.—Austin Oct. 19, 2010, pet. ref'd) (mem. op., not designated for publication) (finding testimony describing complainant's incontinence after making her outcry “tended to corroborate [her] accusations and made the existence of the alleged penetration more probable” where appellant's defense at trial was based on the absence of physical evidence of penetration—i.e., penetration of the complainants was a fact of consequence to the prosecution.).

Moreover, as Appellant points out, there were several inconsistencies within the evidence. Rachel described that on the day of the assault, she slept most of the day and called her mom to pick her up because she was not feeling well; however, neither her aunt nor her cousin Ally could recall a time Rachel slept all day and left because she was not feeling well. Ally did remember overhearing Appellant talk to Rachel about a summer job, but recalled the conversation occurred in June 2019—not in August 2019.

In light of Appellant's defensive theory that Rachel was not sexually assaulted, along with the lack of physical, scientific, or corroborative evidence to support Rachel's allegations, we find the 911 recording served as probative evidence upon which the jury could evaluate Rachel's credibility and assess the truthfulness of her allegations. Furthermore, the trial court could have reasonably found the State needed the 911 recording to rebut Appellant's defensive theory. Accordingly, these factors weigh in favor of admissibility.

(2) The second factor: potential to impress the jury

We must consider the potential of the 911 recording to “impress the jury in some irrational” but nevertheless “indelible way[.]” Erazo, 144 S.W.3d at 489. Appellant relies on two Texas cases and argues that by playing Rachel's “wails, sobs, and moans to the jury,” the “protective instincts of the jury” were provoked because “the audio carried an enormous potential to mislead the jury into determining the case based upon emotion or sympathy rather than evidence.” See Milton v. State, 572 S.W.3d 234, 244 (Tex. Crim. App. 2019); Holte v. State, No. 01-12-00338-CR, 2013 WL 5498134, at *7–8 (Tex. App.—Houston [1st Dist.] Oct. 1, 2013, no pet.) (mem. op., not designated for publication). Appellant also relies on Miller-El v. State for the proposition that the “bare facts” of a victim's injury may be admissible, “but further detail or explanation may only be admissible as victim-impact evidence at punishment.” 782 S.W.2d 892, 895 (Tex. Crim. App. 1990) (en banc). Appellant claims the 911 recording “goes beyond the bare facts” of Rachel's suicide attempt and amplified the emotional impact it would have on the jury. However, Miller-El does not stand for the proposition Appellant suggests it does. In that case, the Texas Court of Criminal Appeals discussed that in the context of capital sentencing proceedings, the admission of a victim's statement detailing the effect the murder had on the family members and the characterizations of the victims and the crime, violated the Eighth Amendment. Id. at 896. Accordingly, Appellant's reliance on Miller-El is misplaced.

There is no doubt the 911 recording is emotional—Rachel has attempted suicide, is distressed, and cries during the 911 recording. Rachel says things like “I do not want to end my life,” “I want to kill myself,” “I want to die,” and “there is nothing for me here.” However, Rachel does not cry throughout the entire recording. She is never heard screaming or shouting. Throughout the recording, there are moments she is very emotional, and there are also moments she is not crying and sounds calmer. Rachel does not reveal gruesome details, and neither she nor the operators mention the sexual assault. Appellant is also never mentioned. The recording consists of Rachel's on and off subdued sobs, her cooperation with the operators, her answers to their questions, and her engagement in casual topics of conversation at times.

Although the call was emotional, we find the potential to impress the jury in an “irrational, but nevertheless indelible way” was circumvented by the fact that Rachel never mentioned sexual assault or Appellant throughout the call. She was never asked why she had attempted suicide. The State argues the 911 recording “could not have aroused hostility toward [Appellant] unless the jury already tended to believe, based on other evidence, that he committed the assault that caused her trauma.” We agree and find this relevant to our consideration. Although the potential to impress the jury was present, we do not find it was irrational or necessarily indelible. Accordingly, this factor weighs only slightly against admissibility.

(3) The third factor: time needed to develop the evidence

As the Court of Criminal Appeals has explained, this factor addresses how much trial time the proponent needed to develop the challenged evidence, “such that the attention of the factfinder will be diverted from the indicted offense[.]” Montgomery, 810 S.W.2d at 390. When the presentation of evidence causes “confusion of the issues,” “mislead[s] the jury,” causes “undue delay” or is needlessly “cumulative,” it weighs against admissibility. See Gigliobianco, 210 S.W.3d at 640-41.

The recording itself is eleven minutes and seven seconds long. However, the time Rachel was conferenced into the call to the time responders arrived, totaled approximately nine minutes. The guilt-innocence phase took three-days, and the record consists of approximately 400 pages. Moreover, the trial court considered whether to admit the 911 recording outside the presence of the jury. The trial court heard the parties' arguments and decided to admit the recording; arguments and the trial court's ruling consisted of four pages of the record. Admission of the call did not cause undue delay. Appellant himself also concedes the recording was not excessively long.

However, Appellant does argue the substance of the 911 recording was needlessly cumulative because when it was published to the jury, Rachel and her parents had testified to the “broad facts” of her suicide attempt. The State also admitted Exhibits 7 and 8—the fire department and hospital records documenting Rachel's medical treatment, which Appellant argues further establishes the cumulative nature of the 911 recording. We disagree.

Comparing the substance of the 911 recording to the “broad facts” testimony of Rachel, her parents, and State's Exhibits 7 and 8, we do find the recording was needlessly cumulative. The 911 recording provided the mental state Rachel was in, which the testimony and exhibits did not provide. To reiterate, Appellant's defensive theory was that he did not sexually assault Rachel; specifically, Rachel “wished it wasn't real because it wasn't. This never happened. It never happened.” The State did not offer the 911 recording to merely prove Rachel attempted suicide. Rather, the State specifically offered the 911 recording for the purpose of showing Rachel's emotional trauma, which would in turn, allow the jury to establish Rachel's credibility and assess the truthfulness of her allegations—i.e., that she was sexually assaulted. Although the recording was emotional, it was not lengthy, did not cause confusion of the issues or mislead the jury, was not needlessly cumulative, and its admission did not cause undue delay. See Gigliobianco, 210 S.W.3d at 641. This factor weighs in favor of admissibility.

(4) Rule 403 conclusion

In sum, although the potential to impress the jury weighs only slightly in favor of Appellant, the remaining factors—the probative value, the time the proponent needed to develop the evidence, and the proponent's need for the evidence—all weigh in favor of admissibility of the 911 recording.⁴

Accordingly, the trial court, after balancing the various Rule 403 factors, could have reasonably concluded the probative value of the 911 recording was not substantially outweighed by the countervailing factors of Rule 403. See id. at 642. The trial court did not abuse its discretion in admitting the 911 recording. Appellant's sole issue is overruled.

CONCLUSION

For these reasons, we affirm.

FOOTNOTES

1.   This case was transferred from our sister court in Travis County, Texas pursuant to the Texas Supreme Court's docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001. We follow the precedent of the Third Court of Appeals to the extent it might conflict with our own. See TEX. R. APP. P. 41.3.

2.   In compliance with the Texas Rules of Appellate Procedure, we use pseudonyms to refer to minors, including the complaining witness. See TEX. R. APP. P. 9.8. We use the same pseudonyms used in the briefing.

3.   A non-acute SANE exam is conducted in situations of delayed outcries and consists of an examination of the victim's body for physical injuries, while a SANE exam must be conducted within the first 120 hours after an assault and consists of the collection of specimen for DNA evidence.

4.   Furthermore, error in the admission of the 911 recording, if any, was harmless and did not affect Appellant's substantial rights. As the Texas Court of Criminal Appeals has explained, “[i]f we have a fair assurance from an examination of the record as a whole that the error did not influence the jury, or had but a slight effect, we will not overturn the conviction.” Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018). Appellant points our attention to an “outburst” Rachel made during her testimony, which according to Appellant, “further underscore[s] and supplement[s] the erroneous emotional impact of the 911 call.” We disagree. At the end of her testimony, Rachel was asked about her feelings regarding Appellant, and she directly addressed Appellant; the trial court sustained Appellant's objection and the State passed Rachel as a witness. The jurors were excused for lunch and as Rachel left the courtroom, she cried and said “I can't do this” several times. Appellant requested a mistrial and the trial court responded he would instruct the jury to disregard anything Rachel may have said while leaving the courtroom. The trial court explained he did not think it was “unexpected in this type of case to have a witness get emotional. And I -- actually, she had been on the stand for several hours. She actually held it together very well for most of that time. And she's, you know, a 17-year-old young woman.” We do not think Rachel's outburst amounts to further underscoring or supplementation of the emotional impact of the 911 recording. We reject this argument. In any case, after admission of the 911 call, the State did not emphasize the 911 recording and referred to it only once during opening arguments and once during closing arguments. Appellant also plead true to all enhancement paragraphs, and the jury learned Appellant had been convicted of murder and aggravated assault. Due to the unique nature of this case—a sexual assault case that lacked physical and corroborating evidence and was purely a matter of “he said, she said”—Rachel's credibility was central to the State's case. Examination of the record leads us to conclude admission of the 911 recording had but a slight effect, and did not affect Appellant's substantial rights.

YVONNE T. RODRIGUEZ, Chief Justice