Timothy Hearne v. State, 14-14-00502-CR

Appellant Timothy Hearne was indicted for three sexual offenses (two counts indecency with a child, one count aggravated sexual assault of a child); he pleaded not guilty.
Three young girls (N.A., D.O., A.H.) alleged appellant touched their genital areas on multiple occasions; forensic exams and interviews were conducted.
At guilt-innocence, appellant testified; the jury found him guilty on three counts of indecency with a child.
During punishment, appellant did not testify; the prosecutor argued sentencing facts and made a remark the defense objected to as commenting on appellant’s silence.
Trial court admitted six still photographs taken from videotaped forensic interviews showing complainants making gestures; appellant argued the gestures were nonverbal hearsay.
Jury assessed twelve years’ imprisonment on each count; appellant appealed arguing (1) admission of the photographs was improper hearsay and (2) denial of mistrial after prosecutor’s comment on appellant’s silence at punishment was error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of still photos showing complainants’ gestures (hearsay)	Photos are nonverbal assertions (conduct) offered for truth; inadmissible hearsay	Gestures accompanied verbal responses and were not intended as substitutes for speech; therefore not hearsay	Admitted — gestures occurred with verbal statements, so not nonverbal hearsay; no abuse of discretion
Denial of mistrial for prosecutor comment on defendant’s failure to testify at punishment	Comment improperly commented on appellant’s failure to testify at punishment, requiring mistrial	Comment was curable; court sustained objection, instructed jury to disregard, and prosecutor clarified reference to earlier testimony; evidence of guilt/punishment strong	No mistrial — court’s curative instruction and clarification, plus strength/nature of evidence, meant no abuse of discretion

Weatherred v. State, 15 S.W.3d 540 (Tex. Crim. App. 2000) (standard of review for evidentiary rulings: abuse of discretion)
Foster v. State, 779 S.W.2d 845 (Tex. Crim. App. 1989) (gesture not hearsay when declarant answers specific question assertively while speaking)
Graham v. State, 643 S.W.2d 920 (Tex. Crim. App. 1981) (nonverbal conduct may be hearsay if intended as substitute for verbal expression)
Randolph v. State, 353 S.W.3d 887 (Tex. Crim. App. 2011) (Fifth Amendment privilege at punishment phase; waiver at guilt phase does not waive at punishment)
Archie v. State, 340 S.W.3d 734 (Tex. Crim. App. 2011) (prohibition on comment about defendant’s silence)
Cruz v. State, 225 S.W.3d 546 (Tex. Crim. App. 2007) (test for manifest intent or natural jury understanding that remark comments on silence)
Bustamante v. State, 48 S.W.3d 761 (Tex. Crim. App. 2001) (context matters; indirect allusions insufficient to show violation)
Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App. 1999) (mistrial is extraordinary remedy for incurable prejudice)
Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) (factors for evaluating prosecutor misconduct)
Moore v. State, 999 S.W.2d 385 (Tex. Crim. App. 1999) (curative instruction ordinarily cures comment on silence)
Schultze v. State, 177 S.W.3d 26 (Tex. App.—Houston [1st Dist.] 2005) (discussion of punishment range and appellate consideration of punishment severity)