Garry Fuller v. State, 01-14-00797-CR

Background

Appellant Garry Fuller was convicted by a jury of two counts of sexual assault of a child and sentenced to life for each count; convictions were enhanced by prior felonies.
Victim (pseudonym Amy) alleged long‑term sexual abuse beginning in childhood by her stepfather, including oral sex and intercourse; a video captured one assault and was played at trial; appellant gave an audio statement admitting wrongdoing and offering self‑serving explanations.
Earlier allegations made in California had been investigated by CPS and described in records as “unfounded” and the California investigation was closed; those records (or testimony about them) were admitted at trial through witnesses, though defense initially faced hearsay exclusion.
Defense sought to elicit evidence of the victim’s past sexual activity from a redacted CAC assessment; the trial court excluded a portion of the form and the redacted portion was not intelligible on the record.
At punishment, the State elicited expert testimony about common symptoms in child sexual‑abuse victims and about treatment/management of sex offenders; one witness used the term “pedophilia” in a nonresponsive answer and the court instructed the jury to disregard.

Issues

Issue	Fuller’s Argument	State’s Argument	Held
Voir dire commitment question: prosecutor asked "How likely a child would lie about sexual abuse?"	Question was an improper commitment question that bound jurors before evidence.	The question sought preexisting bias, not a commitment; analogous to McDonald and Standefer analysis.	Not improper; trial court didn’t abuse discretion in overruling objection.
Opening statement remarks ("sorry you must see video"; "video offensive and degrading")	Remarks were outside the record and inflammatory, requiring mistrial or reversal.	Remarks described nature of anticipated evidence; judge sustained objection and instructed jury to disregard; any untimely objection waived; any error harmless given overwhelming evidence (video, audio).	No reversible error; instruction cured first remark; second objection untimely/waived and harmless.
Questions about victim’s demeanor/emotional state	Prosecutor elicited irrelevant, prejudicial questions about victim’s emotional/psychological state.	Defense failed to identify specific questions or preserve error; demeanor evidence is relevant to show trauma and was largely unobjected to; harmless given other evidence.	No reversible error; waiver and relevance/harmlessness grounds sustain admission.
Exclusion/demonstration that California allegations were "unfounded"	Trial judge prevented defense from showing California finding was "unfounded."	Hearsay objection initially sustained, but the substance (CPS records showing “unfounded and closed”) was later admitted through witnesses; no exclusion of that evidence.	No reversible error — jury heard that the California investigation was closed as "unfounded."
Evidence of victim’s past sexual activity (Rule 412)	Defense sought to introduce redacted CAC notation suggesting victim sexually active to rebut State medical evidence.	Appellant failed to show on record what the excluded material contained; trial objection at bench did not match appellate argument; Rule 412 exception inapplicable because medical testimony did not diagnose sexual activity.	No reversible error; exclusion preserved only imperfectly and exception didn’t apply.
Expert testimony on generalized symptoms/Rape Trauma Syndrome at punishment	Testimony about generalized symptoms was irrelevant because victim did not exhibit all listed symptoms.	Such testimony is admissible to show probable long‑term effects and many of the symptoms were linked to victim’s actual behavior; thus relevant.	Properly admitted; linked to victim and not reversible error.
Reference to "pedophilia" / treatment for sex offenders	Use of term was improper and irrelevant because no evidence appellant met diagnostic definition.	Prosecutor asked about sex‑offender treatment; doctor’s single use of "pedophilia" was nonresponsive and jury was instructed to disregard; sufficient cure; evidence could support inference.	No reversible error; instruction cured the single nonresponsive use and questions were framed re: sex offenders.
Closing argument re: parole law at punishment	Defense’s comments about parole application were proper argument.	Arguing application of parole law to specific defendant is prohibited by statute and impermissible.	Court properly sustained State’s objection; trial court did not err.
Cumulative error claim	Combined alleged errors denied fair trial.	No individual errors established, so no cumulative effect.	No reversible cumulative error.

Key Cases Cited

Archie v. State, 221 S.W.3d 695 (Tex. Crim. App.) (preservation and pursuit of objections)
Blackwell v. State, 193 S.W.3d 1 (Tex. App.—Houston [1st Dist.]) (voir dire/commitment question analysis)
McDonald v. State, 186 S.W.3d 86 (Tex. App.—Houston [1st Dist.]) (similar voir dire question held not a commitment)
Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App.) (three‑part test for improper commitment questions)
Gamboa v. State, 296 S.W.3d 574 (Tex. Crim. App.) (instruction to disregard cures many trial errors)
Gardner v. State, 730 S.W.2d 675 (Tex. Crim. App.) (jurors presumed to follow admonitions)
Paster v. State, 701 S.W.2d 843 (Tex. Crim. App.) (instruction to disregard can cure prejudicial statements)
Tillman v. State, 376 S.W.3d 188 (Tex. App.—Houston [14th Dist.]) (harmless‑error/overwhelming evidence analysis)
Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App.) (overwhelming evidence factor in harm analysis)
Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App.) (expert testimony on behavioral characteristics of child sexual‑abuse victims admissible)