Roy Alton Shaw v. State ( 2008 )

IN THE
TENTH COURT OF APPEALS
No. 10-07-00043-CR
ROY ALTON SHAW,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 18th District Court
Johnson County, Texas
Trial Court No. F40536
O P I N I O N
After his eight-year-old niece made an outcry to her mother that her great-uncle,
Appellant Roy Shaw, had inappropriately touched her, an investigation brought forth
allegations by three other female relatives that Shaw had committed sexual offenses
against them as well. Shaw was eventually charged by indictment with nineteen felony
counts. A jury found him guilty on Counts Two and Nineteen, each of which alleged
indecency with a child by contact, and not guilty on the remaining counts. The jury
assessed a three-year prison sentence and a $5,000 fine on Count Two; on Count
Nineteen, the jury assessed a ten-year sentence and a $10,000 fine but recommended
that the sentence and fine be probated. Shaw appeals, asserting three issues. We will
affirm.
Sufficiency of the Evidence
We begin with Shaw’s second and third issues, which respectively challenge the
factual and legal sufficiency of the evidence on both indecency-by-contact convictions.
A person commits the offense of indecency with a child “if, with a child younger than
17 years and not the person’s spouse, . . . the person . . . engages in sexual contact with
the child or causes the child to engage in sexual contact.” TEX. PEN. CODE ANN. §
21.11(a)(1) (Vernon 2003). Sexual contact means the following, if committed with the
intent to arouse or gratify the sexual desire of any person: “any touching of any part of
the body of a child, including touching through clothing, with the anus, breast, or any
part of the genitals of a person.” Id. § 21.11(c)(2).
Standards of Review
When reviewing a challenge to the legal sufficiency of the evidence to establish
the elements of a penal offense, we must determine whether, after viewing all the
evidence in the light most favorable to the verdict, any rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. See Jackson v.
Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). The standard is
the same for both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d
180, 184 (Tex. Crim. App. 1999). We do not resolve any conflict of fact or assign
credibility to the witnesses, as this was the function of the trier of fact. See Dewberry v.
Shaw v. State Page 2
State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421
(Tex. Crim. App. 1992). Instead, our duty is to determine if the findings of the trier of
fact are rational by viewing all of the evidence admitted at trial in the light most
favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in
the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.
Crim. App. 2000).
In a factual sufficiency review, we ask whether a neutral review of all the
evidence, though legally sufficient, demonstrates either that the proof of guilt is so
weak or that conflicting evidence is so strong as to render the factfinder’s verdict clearly
wrong and manifestly unjust. Watson v. State, 204 S.W.3d. 404, 414-15 (Tex. Crim. App.
2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). “The court reviews the
evidence weighed by the jury that tends to prove the existence of the elemental fact in
dispute and compares it with the evidence that tends to disprove that fact.” Johnson, 23
S.W.3d at 7 (quoting Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). The
appellate court “does not indulge in inferences or confine its view to evidence favoring
one side of the case. Rather, it looks at all the evidence on both sides and then makes a
predominantly intuitive judgment. . . .” Id. (quoting William Powers and Jack Ratliff,
Another Look at “No Evidence” and “Insufficient Evidence,” 69 TEXAS L. REV. 515, 519
(1991)). The nature of a factual sufficiency review authorizes an appellate court,
although to a very limited degree, to act as the so-called “thirteenth juror” to review the
factfinder’s weighing of the evidence and disagree with the factfinder’s determination.
Watson, 204 S.W.3d at 416-17.
Shaw v. State Page 3
Count Two Evidence
In Count Two, Shaw was charged with committing the offense of indecency with
a child by contact against “JoAnn,”1 Shaw’s grand-niece who was around eight years
old at the time of the offense. JoAnn, a nine-year-old fourth grader at the time of trial,
testified that she and her two siblings had previously lived with Roy and Brenda Shaw,
her aunt and uncle who lived “down the street.” She said that while her brother and
sister were cleaning a bedroom on the opposite end of the Shaws’ trailer and Brenda
had gone to the store, Shaw took her into his bedroom and had her take her clothes off
and get on the bed. Shaw, while holding her down and dressed only in pants, then
touched her with his hand on the outside of her private parts (her “tee-tee” and her
“hiney bo”). On that occasion, she was probably in the second grade and it happened
after Christmas; she was either six, seven, or eight years old. She also said that Shaw
did the same thing to her “a few more times.” Shaw’s touching her made her feel “bad”
and he told her that if she told anyone about it, he would whip her. JoAnn repeated
several times that the things that Shaw had done to her really happened, and she said
that no one, including her mother, had told her to say things about Shaw that were not
true.
JoAnn’s videotaped interview was shown to the jury. JoAnn admitted that in her
videotaped interview she said that Shaw’s fingers went inside her, but she does not
remember that happening.
1The indictments used pseudonyms for the four victims. We have added a pseudonym for the minor
victims’ mother, “Brooke,” to further protect their anonymity and also because Brooke alleged at trial that
Shaw had molested her when she was a child.
Shaw v. State Page 4
The first person whom JoAnn told about Shaw’s conduct was her mother,
“Brooke.” JoAnn admitted that Brenda approached her once and that she told Brenda
that she was lying about what she had said Shaw had done to her, but JoAnn testified
that she was lying to Brenda. JoAnn also told her grandmother and another aunt
(Janice) that she was lying when Brenda had approached her and got her to say that she
had lied about what Shaw had done. JoAnn denied telling Brenda that Brooke had
asked her to lie about Shaw: “My mom didn’t tell me to lie about Roy.”
“Janice,” Brooke’s half-sister, recounted JoAnn’s encounter with Brenda, saying
that it happened at her mother’s house. Brenda showed up, came storming in without
knocking, and said she needed to talk to JoAnn. Brenda sat with JoAnn on the couch
and talked to her and then brought JoAnn in the kitchen. JoAnn was crying, and
Brenda told her to say to Debbie (Brenda’s sister and Janice’s mother) what she had just
said. JoAnn said, “I lied.” Brenda said, “Well, that’s all I need. I’m going to talk to my
lawyer now.” Janice then talked to JoAnn, who was still crying, and told her that Shaw
had done the same thing to her when she was a child and had spent the night at the
Shaws’ house. (Shaw’s alleged offenses against Janice were Counts Thirteen, Fourteen,
and Fifteen, asserting indecency with a child by contact. He was acquitted on those
counts.) Janice asked JoAnn why she just said that she had lied, and she said that
Brenda had told her to do so. Janice said that JoAnn then confirmed that Shaw had
touched her.
JoAnn told her mother about Shaw’s touching her after she went back to live
with her. JoAnn testified that she started talking about it because she “just wanted to
Shaw v. State Page 5
tell [Brooke] it.” Brooke testified that on March 25, 2005, after JoAnn had gotten out of
the shower and was wrapped in a towel, she told JoAnn: “I love you very much and if
anyone ever hurts you, I want you to know that I will protect you.” She said that
JoAnn’s demeanor changed:
She put her finger in her mouth. I remember this part perfectly. And she
put her finger in her mouth and she put her head down and her eyes
started to water. And I said, “What’s wrong?” And she said, “He said if I
told anyone he would whoop me.” And I said, “Who”? And she said,
“Roy.”
Brooke then asked if Shaw touched her, and JoAnn said that he had touched her
“privates.” Brooke called the Johnson County Sheriff’s Department and Laura
McWhorter, a friend, to be with the children while she spoke to the responding officer.
Brooke wrote a statement for the responding officer that day, and she admitted writing
in the statement that JoAnn had told her that what Shaw had done had happened “on
the couch.” She confirmed that JoAnn had said it happened on the couch. She also
admitted that, in trying to get details from JoAnn, she asked her how many times it had
happened: “One, two, three, four, five times?” And JoAnn answered, “yeah, four or
five times.”
Brooke testified that her three children had been living with the Shaws from
about November of 2004 to February of 2005. Brooke’s mother Debbie is Brenda’s
sister. She admitted that she was on probation for forgery and DWI. She also admitted
that the Shaws had taken care of her children “for free,” that Shaw had tired of her
“dumping” her kids at his house, and that Shaw disapproved of her lifestyle and that
she “had dated out of her race.” Brooke also admitted that a motion to adjudicate had
Shaw v. State Page 6
been filed against her on March 23, 2005, but she said that her report to law enforcement
about Shaw was not done to curry favor with the State in her probation matter. Rather
than being revoked, her probation was amended.
Brooke admitted that while on probation, she committed and pled guilty to
felony intoxication assault and received probation again, but she also served 120 days in
jail as “overnights.” While serving that time, she reported that Shaw had penetrated
her female organ with his fingers and had fondled her when she was a young teenager.
In spite of that allegation, Brooke admitted that she had thought the Shaws’ home was a
safe place to leave her children and that she had told CPS that as well. She also
admitted that she did not reveal Shaw’s offenses against her when she reported the
offenses against JoAnn, saying that she had not mentioned it before because she
thought the statute of limitations had run, but she had told her grandmother about it
soon after it happened.
Don Beeson, a former detective in the crimes-against-children unit of the Johnson
County Sheriff’s Department, investigated JoAnn’s outcry. He made arrangements for
her to be interviewed at the advocacy center and for both JoAnn and Debra to be
interviewed at Cook’s hospital in Fort Worth. In early April, Beeson called Shaw to
come in and talk to him about an allegation of a sexual offense that Shaw had
committed. When Shaw came in, Beeson gave Shaw his Miranda rights even though he
was not in custody and wrote a statement for Shaw that Shaw signed. The statement
says that he and his wife Brenda have raised Brooke’s three children “on and off” for
the past twelve years, that he has never touched either girl in a sexual way, and that to
Shaw v. State Page 7
his memory he has never been left alone with them. During their meeting, Shaw never
offered Beeson a reason why Brooke would have gotten her two daughters to make
false allegations against him. Beeson was trained in how to spot false allegations by
children, and he did not see any in this case.
Beeson also asked Shaw if he would agree to meet with Bobby Jones, a forensic
interviewer, and Shaw agreed. Beeson drove Shaw to that interview in July, and on the
way back Shaw started talking out loud to himself and then volunteered that he had
had a problem with alcohol and didn’t drive, and that there were times when he would
drink too much and would not be able to remember the previous evening. In the course
of Beeson’s investigation, two other female relatives came forward with allegations that
Shaw had committed sexual offenses against them when they were minors: Janice,
Shaw’s adult niece, and “Teresa,” Shaw’s adopted daughter.
Beeson admitted on cross-examination that it appeared that Brooke had elicited
JoAnn’s outcry, that Brooke’s interrogation of JoAnn was not done under the protocols
of how law enforcement would have interviewed JoAnn, that he did not investigate
whether Brooke had a motive or agenda or a bias to have such allegations made against
Shaw, and that to his knowledge JoAnn and her sister “Debra” were with their mother
from the time of JoAnn’s outcry to the time of their advocacy center interviews. Beeson
also acknowledged that he did not investigate the other men whom JoAnn and Debra
had been around.
Virginia Caldwell, a registered nurse and trained sexual assault nurse examiner,
performed sexual assault exams on JoAnn and Debra. JoAnn told Caldwell that Shaw
Shaw v. State Page 8
(“Roy, my uncle”) had touched her on her genital and anal areas with his hand more
than one time. Caldwell’s physical exam of those areas was normal, which was not
surprising. Caldwell said that the relevant literature reports that the percentage of false
allegations of sexual abuse among all victims is less than one percent. On cross-
examination, Caldwell admitted that an authority figure such as a parent can induce a
memory of something that didn’t happen with a child.
Karen Rayburne, a licensed social worker and CPS investigator with the
Department of Family and Protective Services, specializes in child sexual abuse. She
testified that outcries by children generally are not spontaneous and usually something
triggers an outcry, such as questioning by a parent about touching. Both Rayburne and
Caldwell said that it is common for children to initially disclose only part of the abuse
and to provide more or different information over time and to different people.
Rayburne said that it is common for children to recant, that recantation is most common
in a family setting, that family conflict and pressure can cause recantation, and that
spontaneous recantations are different than recantations upon questioning. As a result
of the allegations against Shaw, a CPS safety plan was implemented that prevented
Shaw from having contact with Brooke’s children, so she could no longer leave them
with the Shaws.
Rayburne investigated Shaw’s alleged sexual abuse of JoAnn and Debra,
including interviewing Brooke and Brenda, and she did not discover any reason why
Brooke would be lying about her children’s allegations or that they had been pressured
to make false allegations. She interviewed “Dale,” the girls’ older brother, who was
Shaw v. State Page 9
with them when they stayed with the Shaws, and he had no knowledge of any sexual
abuse against the girls. Rayburne admitted that a parent or authority figure can
pressure a child to make a false allegation, that a parent with a motive can be behind the
false allegation, that sometimes an investigation will not uncover that motive, but that
usually the motive is discovered.
The defense presented numerous witnesses (relatives and neighbors) who
testified about Brooke’s reputation for dishonesty and bad lifestyle and about Shaw’s
good character. Brenda testified that her relationship with Brooke initially was good
but that once Brooke started having children, she would dump her kids on the Shaws
and not return for several days. Brenda said that Brooke accused Shaw of molesting
JoAnn when she was two years old when Brooke was angry after Shaw had made
Brooke’s boyfriend leave the Shaw’s pool.
Brenda said that Brooke’s children began staying with them in November of 2004
because Brooke was in jail for two weeks, and when she got out of jail, she did not get
them back, although she would drop by to visit. The girls were never left alone with
Shaw because he did not want to babysit them, and if Brenda went to the store, the girls
always went with her. She testified about her numerous back surgeries, back pain and
use of pain medication, and the related difficulties with caring for children.
She and Shaw got “fed up” with Brooke’s leaving her kids with them while she
got to “run around” while they had to care for her kids, and in January they sent the
children to Brooke’s mother’s (Debbie’s) house, where Brooke was staying. The Shaws
told Debbie and Brooke that they would no longer keep Brooke’s three kids. Brenda
Shaw v. State Page 10
recounted that after JoAnn’s outcry, she ran into JoAnn and Debra with their
grandmother Debbie at Wal-Mart, and while JoAnn was alone with her, she asked her if
Shaw had “messed with her,” and JoAnn put her head down. Brenda then recounted
the occasion at Debbie’s house where she asked JoAnn to tell Debbie what JoAnn had
told her at Wal-Mart.
Shaw testified; he denied all the allegations against him, including Brooke’s
allegation that he had molested JoAnn when she was two. He related his problems
with Brooke’s boyfriends’ stealing things and her leaving her kids with them. He
denied ever being alone with JoAnn or Debra, and he explained that the children were a
difficulty on Brenda because of her back problems. He confirmed that Brooke’s three
kids stayed with them from November of 2004 to January of 2005, and he was never
alone with JoAnn or Debra in that time frame either. In January he told Brooke that he
“was tired of her dumping the kids off on us.”
Shaw said he freely went to talk to Beeson without a lawyer because he had not
done anything wrong. When he talked to Jones, he was nervous and scared and that
Jones asked him if a lot of things were “possible.” He denied drinking so much that he
could not remember the day before, but he said he told Jones it was “possible,” but it
had never happened. He admitted to telling Beeson that he had sometimes drank too
much, but he did not remember telling him that he drank so much he couldn’t
remember what had happened. Shaw also admitted that he did not tell Beeson about
Brooke’s first false allegation or about telling Brooke that he wouldn’t keep her kids
anymore and she thus “had an ax to grind” with him. Shaw also admitted telling Jones
Shaw v. State Page 11
that it was possible that he may have accidentally touched the girls while bathing them
or playing with them. Jones asked him if it was possible that he got so drunk that he
touched JoAnn’s genital area, and Shaw said he told Jones it was “possible,” but he did
not do it.
In the State’s rebuttal, Lauren McWhorter, a social worker and Brooke’s friend
since grade school, confirmed that Brooke had called her the day of JoAnn’s outcry. She
received a call from Brooke, who was very upset and crying and told her the situation
that had just occurred with JoAnn’s outcry. McWhorter said to call the police and she
immediately went to Brooke, who was at Debbie’s house. When she arrived Brooke
was crying and upset. McWhorter stayed outside with the kids while Brooke spoke
with the responding officer, whose patrol car was parked in front of Debbie’s house.
While they were outside, Brenda drove up and the first thing she said to McWhorter
was “did somebody touch the girls?,” which McWhorter found curious. McWhorter
confirmed Brooke’s bad qualities and poor choice in men and that she did not have a
good opinion of Brooke’s truthfulness.
Bobby Jones, the forensic interviewer, testified in rebuttal about his interview
with Shaw, stating that Shaw admitted that he had changed JoAnn’s diapers when she
was an infant and he had touched her genital area then and when he had bathed her,
but not sexually. He also told Jones that, about six months before their interview,
JoAnn had slipped and fallen in the bathtub and he was in the bathroom and when he
grabbed her, it was possible he may have touched her genital area. Shaw also brought
up to Jones that it was “very possible” that, while playing with JoAnn and tossing her
Shaw v. State Page 12
in the air, his hand slipped into her underwear and he touched her genital area, and he
also indicated that he played a game with JoAnn where he flipped her over and his
hand may have gone up her shirt and touched her breast. Shaw told Jones about a time
when both girls were taking a bath and a mouse got in the tub, and in trying to get the
mouse, Shaw might have touched JoAnn’s genital area. While he admitted possibly
touching JoAnn, he denied that he ever touched her sexually.
Finally, Jones said that Shaw told him it was possible he had drank too much and
touched JoAnn and didn’t remember because “a time or two” he had gotten drunk and
couldn’t remember what he had done. Shaw gave Jones an example of being drunk and
waking up the next day to learn that a taco he had put in the refrigerator was gone
because he had eaten it the night before but did not remember eating it.
Count Two Disposition
With respect to the jury’s guilty verdict on Count Two involving JoAnn, a minor
complainant’s testimony alone is sufficient to support a conviction for indecency with a
child. See Abbott v. State, 196 S.W.3d 334, 341 (Tex. App.—Waco 2006, pet ref’d). In
addition to JoAnn’s testimony and her videotape, the jury heard the outcry testimony
from Brooke and Caldwell’s similar testimony. JoAnn’s versions of the offenses were
inconsistent, but Caldwell and Rayburne said that was normal and common for child
victims. And while JoAnn recanted to Brenda, she immediately claimed that her
recantation was a lie. Also, while Brooke’s reputation for truthfulness was impugned,
JoAnn’s was not. Shaw denied the allegations and had numerous character witnesses
testify on his behalf, but he made near-incriminating statements to Jones.
Shaw v. State Page 13
On Shaw’s legal sufficiency complaint on Count Two, our duty is to determine if
the jury’s guilt finding is rational by viewing all of the evidence admitted at trial in the
light most favorable to the verdict. In so doing, any inconsistencies in the evidence are
resolved in favor of the verdict, and we do not resolve any conflict of fact or assign
credibility to the witnesses, as this was the jury’s function. Viewing the evidence in the
light most favorable to the verdict, we find that a rational trier of fact could have found
beyond a reasonable doubt that Shaw committed the offense alleged in Count Two.
In our factual sufficiency review of the jury’s guilt finding on Count Two, we
conduct a neutral review of all the evidence to determine if the proof of guilt is so weak
or that conflicting evidence is so strong as to render the jury’s verdict clearly wrong and
manifestly unjust. Shaw primarily posits that the jury’s acquittal on seventeen of the
nineteen counts is an integral factor in our factual sufficiency review. We disagree. The
jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to
be given to the witnesses’ testimony. Jaggers v. State, 125 S.W.3d 661, 670 (Tex. App.—
Houston [1st Dist.] 2003, pet. ref’d) (citing Penagraph v. State, 623 S.W.2d 341, 343 (Tex.
Crim. App. 1981)). The jury may believe all, some, or none of any witness’s testimony.
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Jaggers, 125 S.W.3d at 670.
Furthermore, most of the seventeen acquittals were the counts pertaining to Janice and
Teresa, who were adults whose allegations against Shaw were made many years after
the alleged offenses occurred, whereas JoAnn’s and Debra’s allegations were made
within a couple of months. Under those plainly different circumstances, a jury
rationally could have found that JoAnn’s and Debra’s allegations pertaining to Counts
Shaw v. State Page 14
Two and Nineteen were proved beyond a reasonable doubt, while the allegations
involving Janice and Teresa were not.
The jury was faced with conflicting evidence. As the reviewing court, we
“should not substantially intrude upon the jury’s role as the sole judge of the weight
and credibility of witness testimony.” Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim.
App. 2002); see also Sharp, 707 S.W.2d at 614; Jaggers, 125 S.W.3d at 670.
The degree of deference a reviewing court provides must be proportionate
with the facts it can accurately glean from the trial record. A factual
sufficiency analysis can consider only those few matters bearing on
credibility that can be fully determined from a cold appellate record. Such
an approach occasionally permits some credibility assessment but usually
requires deference to the jury’s conclusion based on matters beyond the
scope of the appellate court’s legitimate concern. See GEORGE E. DIX &
ROBERT O. DAWSON, 42 TEXAS PRACTICE—CRIMINAL PRACTICE AND
PROCEDURE § 36.69 (Supp. 1999). Unless the available record clearly
reveals a different result is appropriate, an appellate court must defer to
the jury’s determination concerning what weight to give contradictory
testimonial evidence because resolution often turns on an evaluation of
credibility and demeanor, and those jurors were in attendance when the
testimony was delivered.
Johnson, 23 S.W.3d at 8.
We must defer to the jury’s determination concerning what weight to give the
contradictory testimonial evidence. See, e.g., In re A.B., 133 S.W.3d 869, 873-74 (Tex.
App.—Dallas 2004, no pet.); Scugoza v. State, 949 S.W.2d 360, 362-63 (Tex. App.—San
Antonio 1997, no pet.); Fetterolf v. State, 782 S.W.2d 927, 933 (Tex. App.—Houston [14th
Dist.] 1989, pet. ref’d); see also Johnson, 23 S.W.3d at 7-8. Considering all of the evidence
in a neutral light, we find that the jury was justified in finding Shaw guilty on Count
Two because the evidence is factually sufficient: The proof of guilt is not so weak and
Shaw v. State Page 15
the conflicting evidence is not so strong as to render the jury’s verdict clearly wrong
and manifestly unjust.
Count Nineteen Evidence
In Count Nineteen, Shaw was charged with committing the offense of indecency
with a child by contact against Debra, Shaw’s grand-niece who was around six years
old at the time of the offense. In addition to the above evidence, the evidence showed
that at the time of trial, Debra was an eight-year-old second grader, and she testified
that she had previously lived with the Shaws. She said that when she lived with the
Shaws, Shaw touched her private parts under her clothing (a nightgown) and
underwear—her “tee-tee,” “hiney bo,” and “boobies,” and his fingers went inside of
her. He did it while she and Shaw were lying on the living-room couch on their sides
(with Shaw behind her) under a blanket, and they were watching the “Grinch,” a
Christmas movie, around Christmastime. JoAnn was there, but she was sitting on the
floor in front of the television, and Brenda was there but was either cooking in the
kitchen or cleaning the bathroom.
Debra said that the first person she told about it was her mother on the next day,
and JoAnn was there when she told her mother about it. She later said she didn’t
remember telling her mother what Shaw had done. Debra’s videotaped interview was
shown to the jury. Like JoAnn, Debra’s versions of her allegations against Shaw were
inconsistent.
Brooke said that after JoAnn’s outcry, she asked Debra if anything had happened
to her, and she said, “no, I don’t want to talk about it.” When Brooke took JoAnn to the
Shaw v. State Page 16
advocacy center to be interviewed, Debra went with them. While they were there,
Brooke told Debra that if she needed to say anything, “now is the perfect time for it,”
and Debra hesitantly said that Shaw had touched her breasts in the Shaws’ living room
while Brenda was in bed or not there. She also told Brooke that Shaw often would lay
on the couch with her. Brooke then told an advocacy center employee that Debra had
something to say.
Brooke admitted that when she brought up the subject with Debra, she asked her
if Shaw had touched her. She denied telling Debra to say that they were watching the
“Grinch” when it happened.
Debra told Caldwell that “Roy” touched her private part by putting his hand in
her panties, that he did it lot, and that sometimes it hurt. Caldwell’s genital/anal exam
of Debra was normal. Caldwell did not think that Brooke’s initial questioning of Debra
by asking if Shaw had done anything to her was inappropriate because JoAnn had
already alleged that he had touched her. Debra did not report to her that Shaw had
touched her breasts.
Count Nineteen Disposition
We find that the evidence is legally and factually sufficient on the jury’s guilt
finding on Count Nineteen for essentially the same reasons set forth in our discussion
on Count Two.
Shaw’s second and third issues are overruled.
Exclusion of Evidence
Shaw’s first issue complains about the trial court’s exclusion of evidence that a
Shaw v. State Page 17
boyfriend of the victims’ mother was a registered sex offender. We review a trial
court’s admission or exclusion of evidence for abuse of discretion. McDonald v. State,
179 S.W.3d 571, 576 (Tex. Crim. App. 2005). Questions of relevance should be left
largely to the trial court, relying on its own observations and experience, and will not be
reversed absent an abuse of discretion. Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim.
App. 1993). “A trial court abuses its discretion when its decision is so clearly wrong as
to lie outside that zone within which reasonable persons might disagree.” Id.
Various witnesses, including Brooke and her two daughters, testified about the
various men whom Brooke had been involved with or lived with and her children had
thus been exposed to. One was Glen Walker, a registered sex offender. The jury heard
evidence from the two girls that they had been around Walker and, with their mother
and brother, had stayed overnight some at Walker’s residence, and several witnesses
said that the girls should not have been around Walker. But the trial court excluded
evidence that Walker was a registered sex offender on the State’s objections that it was
not relevant and, if relevant, was more prejudicial than probative and was confusing.
In an offer of proof, Shaw’s counsel elicited evidence from Rayburne that Walker was a
registered sex offender.
Shaw’s brief does not explicitly explain the relevance of Walker’s registered-sex-
offender status. He argues that “there is little doubt that the probative value of
Walker’s contact with the children in this case could have undermined the State’s case,”
but his brief does not explain why. Moreover, the jury heard numerous witnesses say
that JoAnn and Debra were around Walker. We therefore assume that Shaw’s relevance
Shaw v. State Page 18
argument is premised on Walker’s being an alternative perpetrator of the offenses
alleged by the children.
“Evidence which is not relevant is inadmissible.” TEX. R. EVID. 402. Relevant
evidence is “evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Id. 401. “A defendant has a fundamental right to
present evidence of a defense as long as the evidence is relevant and is not excluded by
an established evidentiary rule.” Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App.
2001) (citing Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 1049, 35 L. Ed. 2d 297
(1973)). Evidence is considered relevant if it is material and probative. Id. To be
material, the evidence “must be shown to be addressed to the proof of a material
proposition, i.e., ‘any fact that is of consequence to the determination of the action.’” Id.
(quoting 1 STEVEN GOODE ET AL., TEXAS PRACTICE: GUIDE TO THE TEXAS RULES OF
EVIDENCE § 401.1). Evidence is considered probative if it “tend[s] to make the existence
of the fact ‘more or less probable than it would be without the evidence.’” Id.
It is axiomatic that in a criminal prosecution, the State must prove each element
of the alleged offense beyond a reasonable doubt, and those elements are material
issues in the prosecution. See Soffar v. State, 742 S.W.2d 371, 377 (Tex. Crim. App. 1987)
(“The material issues in a criminal prosecution always consist of the elements of the
offense.”). But the identity of the accused is not an issue in every prosecution; the main
issue can be whether an offense was committed at all. See, e.g., Eubanks v. State, 113
S.W.3d 562, 566 n.1 (Tex. App.—Dallas 2003, no pet.); Morris v. State, 110 S.W.3d 100,
Shaw v. State Page 19
103 (Tex. App.—Eastland 2003, pet. ref’d). In this case, the identity of the perpetrator of
the sexual offenses allegedly committed against JoAnn and Debra was not an issue.
They both knew Shaw very well and unequivocally and consistently said that he
committed the charged offenses against them. The main issue on the charges against
Shaw was whether the offenses occurred at all.
Evidence of Walker’s registered-sex-offender status would only have been
relevant if the identity of the alleged perpetrator of the offenses was an issue in the case.
But in this case, evidence of an alternative perpetrator, such as Walker, is not relevant,
i.e., is immaterial, to the determination of whether the alleged offenses occurred. Cf.
Turner v. State, 600 S.W.2d 927, 933 (Tex. Crim. App. 1980). Therefore, we cannot say
that the trial court abused its discretion in excluding evidence of Walker’s sex-offender
status on relevance grounds. We overrule Shaw’s first issue.
Conclusion
Having overruled all of Shaw’s issues, we affirm the trial court’s two judgments
of conviction.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed December 3, 2008
Do not publish
[CR25]
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