Timothy Hearne v. State, 14-14-00503-CR

Appellant Timothy Hearne was tried for three counts of indecency with a child based on allegations by three young relatives that he touched their genital areas on multiple occasions.
The three children (N.A., D.O., and A.H.) were interviewed at the Children’s Assessment Center and examined by a SANE nurse; statements to investigators and interviews formed key evidence.
The State charged Hearne with two counts of indecency with a child and one count of aggravated sexual assault of a child; he pleaded not guilty.
At the guilt-innocence phase Hearne testified; the jury found him guilty on three counts and assessed punishment at 12 years’ imprisonment on each count. Hearne did not testify during punishment.
Trial evidence included six still photographs taken from videotaped forensic interviews showing complainants making hand gestures while answering interviewer questions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of photographs showing complainants’ gestures (hearsay)	Photographs are nonverbal “assertions by conduct” and thus inadmissible hearsay	Gestures accompanied verbal responses, so not intended as verbal substitutes; photos are not out-of-court statements	Court affirmed admission — gestures were not hearsay because they were not intended as substitutes for verbal expression
Prosecutor’s punishment-phase remarks about defendant’s remorse (commenting on silence)	Prosecutor’s statement that defendant didn’t ask for forgiveness was a comment on his failure to testify and required mistrial	Any improper comment was cured by immediate instruction to disregard and subsequent clarification referencing guilt-phase testimony; no incurable prejudice	Court denied mistrial — any error was not severe, cured by judge’s instruction and clarification, and punishment outcome was supported by strong evidence

Weatherred v. State, 15 S.W.3d 540 (Tex. Crim. App. 2000) (abuse-of-discretion review of evidentiary rulings)
Graham v. State, 643 S.W.2d 920 (Tex. Crim. App. 1981) (nonverbal conduct can be hearsay when intended as substitute for verbal expression)
Foster v. State, 779 S.W.2d 845 (Tex. Crim. App. 1989) (gesture in response to specific question is not a 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 punishment-phase right)
Archie v. State, 340 S.W.3d 734 (Tex. Crim. App. 2011) (comment on failure to testify violates constitutional and statutory protections)
Cruz v. State, 225 S.W.3d 546 (Tex. Crim. App. 2007) (standard for determining when prosecutor’s language is manifestly intended as comment on silence)
Moore v. State, 999 S.W.2d 385 (Tex. Crim. App. 1999) (jury instruction to disregard generally cures prosecutorial comment on defendant’s silence)