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Click here for the full text of this decision FACTS:Authorities indicted Edward Ellis Wells on four counts of aggravated sexual assault of a child. The alleged victim was Edward’s stepdaughter. She was 26 years old at the time of trial but testified that Edward began abusing her at age 9 and continued until she was 13. The first episode occurred one night in 1988. She got out of bed and asked her mom, Lou Ann Wells, if she could go to bed with her. Lou Ann said yes, told her to go on to bed and said that she would be there later. Edward was already in bed. When the victim got into bed, he started feeling between her legs and stuck his finger into her vagina. Subsequent episodes involved similar physical contact and oral sex. On one occasion, Edward purchased a vibrator and made the victim use it while he watched. Several days after the original episode, the victim complained to her mother about the incident. Lou Ann confronted Edward. He admitted that he had touched the victim’s vagina but claimed that he thought it was Lou Ann coming to bed. Lou Ann made Edward leave the house but allowed him to return after a day. Then in 1992, when the victim was 13, Child Protective Services received a complaint concerning Edward and commenced an investigation. Lou Ann had been recently told by her sister and by a friend who had lived with them for two months that Edward was still engaged in inappropriate behavior with the victim. Lou Ann asked the victim if Edward had touched her again and was told yes. Lou Ann confronted Edward at work. He admitted that the victim’s allegations were true. Lou Ann was worried about her finances and about the effect the investigation might have on the family. So she lied to the CPS investigator by saying that she did not know anything about the allegations of wrongdoing. She told the victim to do the same. The victim told the investigator that Edward had walked in on her once while taking a shower but did not claim any other abuse. Edward told the investigator that he had accidentally touched the victim’s vagina years earlier when he thought she was his wife but denied any other wrongdoing. CPS completed its investigation. The case was not referred to the district attorney or local police for prosecution. Edward and Lou Ann were divorced in 1998. He married Melanie Wells in 2000. In 2003, the victim contacted CPS, and it conducted a second investigation. CPS interviewed Edward, and he again admitted to the 1988 bedtime incident but maintained that it was an accident. CPS scheduled a hearing. When no one appeared at the hearing, CPS closed its investigation. The Midland Police Department subsequently obtained CPS’ investigatory materials, and authorities indicted Edward. The jury found Edward guilty on all counts and assessed his punishment at 50 years of confinement in the Texas Department of Criminal Justice, institutional division, for each count. HOLDING:Affirmed. Edward brought two issues on appeal. First, he contended that the trial court violated the confrontation clause by admitting CPS records containing testimonial statements. Second, he contended that the trial court erred in refusing to give a contemporaneous limiting instruction regarding extraneous offenses. Edward, the court stated, argued that the trial court erred by admitting CPS records containing statements from a witness that he was not given the opportunity to cross-examine. The state offered records from the 1992 CPS investigation under the business records exception to the hearsay rule. These records included an intake form that indicated that an unnamed “collateral” person, who had lived with Edward the last few months, reported that Edward had watched the victim shower and dress, had inappropriately touched the victim and had made inappropriate comments. Statements are nontestimonial, the court stated, when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. Statements are testimonial, the court stated, when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Because the collateral source reported past criminal behavior by Edward to an organization statutorily required to investigate such complaints and because the record contained no evidence that the contact served anything other than an investigative purpose, the court found that the statements were testimonial. Because the allegations were testimonial and because Edward did not have the opportunity to cross-examine the collateral source, the court held that the trial court erred by admitting the 1992 CPS intake form. The court then analyzed the error under harmless-error analysis. The court stated that it was convinced beyond a reasonable doubt that the error was not a contributing factor in the jury’s deliberations in arriving at a verdict. The trial court, the court explained, did not err by allowing testimony that CPS conducted an investigation in 1992; why that investigation was initiated; or what the victim, Lou Ann, and Edward told the investigator. The error was limited to the admission of the substance of the 1992 anonymous allegation. That allegation played very little role in the trial, the court stated. It is clear, the court stated, that the substance of the 1992 anonymous allegation played no part in the jury’s deliberations. The state’s case and Edward’s defense turned on the victim’s credibility. The substance of the 1992 allegation was not material to that determination. The 1992 allegation was briefly and only tangentially discussed during the testimony, the note itself was cryptic, and neither the state’s opening statement nor closing argument repeated it. Therefore, the court found that the trial court’s error was harmless. OPINION:Strange, J.; Wright, C.J., and McCall and Strange, JJ.

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