Christopher Lynn Petty v. the State of Texas ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00130-CR
___________________________
CHRISTOPHER LYNN PETTY, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 89th District Court
Wichita County, Texas
Trial Court No. 57,642-C
Before Womack, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
Appellant Christopher Lynn Petty appeals his conviction of aggravated sexual
assault of a child, Lisa.1 See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (iii), (a)(2)(B).
In three issues, Petty complains that the trial court abused its discretion by designating
a certain outcry witness, that the trial court abused its discretion by refusing to admit
certain evidence of Lisa’s prior sexual conduct, and that the evidence is insufficient to
support his conviction. We will affirm.
II. BACKGROUND
A. Petty’s Relationship with Lisa’s Mother
Sometime around the end of 2014 and the beginning of 2015, Petty was in a
relationship with Lisa’s mother, Jade.2 While Petty was in a relationship with Jade, he
spent most nights at Jade’s house. Jade moved while dating Petty, living in a house
“off of Kemp” and a house on “Avenue G.”3 Petty followed Jade during the move,
1
To protect the anonymity of the victim in this case, we will use aliases to refer
to her and others connected with the case. See Tex. R. App. P. 9.8 cmt., 9.10(a)(3);
McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
2
Petty was forty-three years old at the time.
For ease of reference, we will refer to these two locations as the “Kemp
3
house” and the “Avenue G house.” There is conflicting evidence in the record as to
whether Jade lived first at the Kemp house or first at the Avenue G house.
2
spending most nights with her at each location. During this time period, Jade also
lived with her children, including Lisa, who was twelve years old at the time.4
B. Lisa Becomes Pregnant
In 2015, Lisa noticed that she had missed her period, with her last period
occurring in December 2014. Lisa told Jade about her missed period, but, according
to Lisa, Jade “didn’t do nothing.”5 After about six months, and with her stomach
increasingly growing, Lisa figured out on her own that she was pregnant.
In September 2015, Camille Schmader, an investigator with Child Protective
Services (CPS), received a referral relating to Lisa’s pregnancy. Schmader went to
Lisa’s elementary school to meet with Lisa and observed that Lisa was about eight
months pregnant.6 Schmader then notified law enforcement about Lisa’s pregnancy,
contacting Walter Vermillion, a Wichita Falls police officer who was assigned to the
Crimes Against Children unit.7
4
At trial, Jade testified that while the family was living at the Kemp house, she
was also living with her mother and her mother’s boyfriend. It is unclear from the
record whether Jade’s mother and Jade’s mother’s boyfriend also lived in the Avenue
G house.
5
At trial, Jade testified that when Lisa told her about Lisa’s missed period, she
told Lisa that it might just be an irregular period, mentioning to Lisa that her own
periods came irregularly.
6
Lisa was in the sixth grade at the time.
7
Jade testified at trial that she did not know that Lisa was pregnant until Lisa’s
school became “concerned about her stomach” and CPS got involved.
3
C. The First Forensic Interview
On September 9, 2015, Schmader took Lisa to Patsy’s House8 for a forensic
interview. Shannon Althouse,9 a forensic interviewer for Patsy’s House, conducted
the interview. During that interview, Lisa indicated that T.J., a boy who was nine
years old and in the third grade at the time, was the father of her unborn child. Lisa
told Althouse that T.J. had “put his stuff in her wrong part” while in the “kids’ room”
at the Kemp house. Lisa recounted that T.J. “came into the room and had sex, and
then that he asked her if she wanted some sex” and that “she told him no, that she
was trying to sleep.”10 Lisa told Althouse that the incident with T.J. had occurred two
or three months prior to that forensic interview, although Althouse noted that Lisa
appeared to be more than two to three months pregnant at the time of that
interview.11 Lisa did not mention Petty during that interview. Lisa did, however,
8
The record reflects that Patsy’s House is a local child advocacy center that
provides a neutral environment for child abuse victims to discuss what has happened
to them.
9
During part of this case, Althouse’s last name was May. For consistency, we
will refer to her as “Althouse.”
10
Althouse testified that Lisa did not give any more details about the alleged
incident with T.J. and that she found it difficult to understand what Lisa meant by her
description of the incident.
11
At trial, Lisa stated that she had lied during the first forensic interview when
she said that T.J. had impregnated her. Lisa indicated that nothing sexual had ever
happened between her and T.J., stating that she had lied during the interview because
she was scared.
4
indicate to Althouse that she had not told Althouse everything about what had
occurred, mentioning that “she wasn’t ready to tell everything.”
D. The Second Forensic Interview
On September 11, 2015—two days after the first forensic interview—Lisa went
back to Patsy’s House for a second forensic interview.12 During that interview, Lisa
indicated that she had been sexually abused by Petty on one occasion. Lisa told
Althouse that the incident had occurred at night in the “kids’ room” in the Avenue G
house, while other children were in the room asleep. Lisa was hesitant to talk to
Althouse during the interview, so Althouse had Lisa write down what had happened
to her. While Lisa was writing, she asked Althouse how to spell the word “rape.”
During the interview, Lisa indicated that Petty had put his “private part that goes pee”
in her “private part . . . that goes pee.” Lisa also indicated that she had tried to stop
the abuse by asking Petty to get off her and by trying to move her body away from
him but that she was unable to stop the assault. She described to Althouse that her
private parts were wet after the incident and that it had hurt. Lisa also indicated that
she thought that Petty had raped her as punishment for not doing her chores
12
Althouse testified that she believed that a second forensic interview was
conducted because Lisa had made some additional outcry to Jade after the first
forensic interview. As will be discussed in more detail below, the trial court later
conducted a hearing to determine whether Althouse or Jade was the proper outcry
witness pursuant to Article 38.072 of the Texas Code of Criminal Procedure. See Tex.
Code Crim. Proc. Ann. art. 38.072. The trial court ultimately determined that
Althouse was the proper outcry witness.
5
correctly. Lisa told Althouse that she had not mentioned Petty during the first
forensic interview because “she wasn’t ready.”
E. The DNA Tests
In October 2015, one month after turning thirteen, Lisa gave birth to Lyle.
That same month, DNA samples were collected from Lisa and Lyle via buccal swabs.
Vermillion testified that he personally collected Lisa’s DNA sample. As to Lyle’s
DNA sample, Vermillion testified that he requested that Katie Harrill,13 a nurse at the
hospital where Lyle was born, administer the buccal swabs as Vermillion thought that
she would be better at handling a newborn. Vermillion instructed Harrill how to
obtain Lyle’s DNA, and Vermillion observed that Harrill took the swab correctly.
Harrill testified at trial that Vermillion had taken the swab out of its packaging and
handed it to her, and that after taking the swab, she handed it back to Vermillion.
Harrill testified that she wore gloves while obtaining Lyle’s DNA, although she did
not wear a mask.
In March 2016, Vermillion obtained a DNA sample from Petty via buccal
swabs while Petty was in one of the interview rooms of the Wichita Falls Police
Department. At trial, Vermillion testified that he wore gloves when obtaining Petty’s
DNA, although he did not wear a mask. He also testified that he would not call the
interview room a sterile environment.
13
By the time of trial, Harrill’s last name had changed to Case. For consistency,
we will refer to her as “Harrill.”
6
Vermillion testified that after the respective swabs were collected and sealed,
they were placed into different paper bags and sealed with evidence tape, and then
they were turned over to the property room for storage. In March 2016, Brad Love, a
detective with the Wichita Falls Police Department, gathered the respective samples
and took them to the Southwestern Institute of Forensic Sciences in Dallas (SWIFS).14
At trial, Amanda Webb, a forensic biologist at SWIFS, testified regarding the
respective DNA samples. She stated that SWIFS received the samples from the
Wichita Falls Police Department in March 2016, that she was able to extract DNA
from each of the buccal swabs, that she performed DNA testing on the samples, and
that she made a report of her findings. Webb testified that she performed the testing
while wearing gloves and a lab coat, although she did not wear a mask. While Webb
acknowledged that it was possible for a DNA sample to be contaminated if someone
breathed on it, she also stated that she could tell if a DNA sample came from a single
individual or multiple contributors. Webb testified that “for each buccal swab
standard [in this case, she] obtained a DNA profile from a single person.”
As to the results of her DNA testing, Webb stated that the probability that a
randomly selected man would be excluded as being Lyle’s biological father was greater
than 99.99 percent and that Petty could not be excluded as being Lyle’s biological
father. She further testified that it was 144,000 times more likely that Petty is Lyle’s
Love testified that he drove the respective samples straight to SWIFS without
14
making any stops.
7
biological father than a randomly selected, unrelated male. She also stated that “based
upon the most conservative probability of paternity statistics, and ignoring all non-
genetic information, the probability that [Petty] is the biological father of [Lyle] is
greater than 99.99 percent.”15
F. Lisa’s Testimony at Trial
Lisa was eighteen years old at trial. She testified that Petty was dating Jade in
2014 and 2015 and that during that timeframe he would spend “[m]ultiple nights in a
row” at Jade’s house. Lisa testified that Petty had raped her. She testified that the
assault occurred one night in the “kids’ room” when she was living at the Kemp
house. She recounted that just before the assault occurred, she had been sleeping
with her sister on one twin bed in the room, while two of her brothers were sleeping
on another twin bed in the room, and while her oldest brother, Scott, was also
sleeping in the room.16 Lisa described Petty coming into the room while she was
sleeping, pulling down his pants and getting on top of her, and putting his penis in her
vagina. She stated that she tried to push Petty off her, but that it did not work. She
also stated that none of her siblings in the room woke up during the assault and that
15
At trial, Vermillion testified that he had also obtained a DNA sample from
Scott, Lisa’s older brother. Vermillion indicated that he obtained Scott’s DNA sample
before Lisa named Petty as her abuser. Vermillion stated that Scott’s DNA sample
was never tested because after obtaining the results indicating that Petty was Lyle’s
father, Vermillion did not think it was necessary to also test Scott’s DNA sample.
It is unclear from Lisa’s testimony what Scott was sleeping upon, although
16
Lisa mentioned that a couch was located in the “kids’ room.”
8
she did not try to wake anyone up because she was scared. Lisa stated that Petty
stopped raping her “[w]henever he nutted” and that she went into the bathroom and
cried. Lisa indicated that she did not wake up Jade because she was scared that CPS
would take her siblings away if she reported the assault.
G. Petty is Convicted and Now Appeals
A jury found Petty guilty of aggravated sexual assault of a child. The jury found
two enhancement paragraphs to be true and assessed his punishment at confinement
for life. The trial court sentenced him accordingly, and this appeal followed.
III. DISCUSSION
A. Petty’s Complaint Regarding the Trial Court’s Outcry Witness Designation
In his first issue, Petty complains that the trial court abused its discretion by
designating Althouse as the outcry witness and by relying on allegedly inadmissible
testimony regarding what Lisa told Jade. In response, the State argues, among other
things, that Petty has not challenged all independent grounds for the trial court’s
designation; that Petty has waived his complaint; and that even if the trial court erred
by designating Althouse as the outcry witness, any error made by the trial court was
harmless.
1. Background to Petty’s Complaint
Prior to trial, the State gave notice of its intent to offer hearsay statements
pursuant to Article 38.072 of the Texas Code of Criminal Procedure. See Tex. Code
Crim. Proc. Ann. art. 38.072. In its notice, the State indicated that it believed that
9
Althouse was the first person at least eighteen years of age or older that Lisa made a
statement to concerning the alleged abuse, and the State indicated that it intended to
offer the outcry statements made by Lisa to Althouse regarding the abuse. The State’s
notice also indicated that it believed that Jade was the first person at least eighteen
years of age or older that Lisa made a statement to concerning the alleged abuse, and
the State indicated that it intended to offer the outcry statements made by Lisa to Jade
regarding the abuse.17
The trial court held a pretrial hearing regarding the proper designation of
outcry witness. At the hearing, Matthew Ohm, an investigator with the Wichita
County District Attorney’s Office, testified that he had contacted Jade about the case
and that she was uncooperative. Ohm also testified that he had served Jade with a
subpoena for the outcry hearing but that Jade did not show up at the hearing.
Vermillion testified at the outcry hearing that he had become aware that Jade and
Althouse were potential outcry witnesses. Over hearsay and Confrontation Clause
objections, Vermillion testified that on September 10, 2015, Lisa had told Jade that
Lisa was “messing around” with Petty. Later at the hearing, without any objection,
Althouse testified that Lisa had told Jade that Lisa and Petty “had messed around.”
17
In an exhibit attached to the notice, the State indicated that on September 10,
2015, Lisa had told Jade that Petty was “messing around” with Lisa. The State further
indicated that on September 11, 2015, Lisa had told Althouse that Petty had put his
penis in Lisa’s vagina in the winter of 2014 while everyone was asleep in the kids’
room of the Avenue G house.
10
Althouse further testified that on September 11, 2015—during the second forensic
interview—Lisa had given a detailed account to her of the assault.
After testimony was given, the State argued that Althouse was the proper
outcry witness, contending that (1) Jade was uncooperative and was unavailable to
serve as an outcry witness, and (2) Althouse was the first adult to whom Lisa had
made specific statements regarding the assault. In a written order, the trial court
found that Althouse was the proper outcry witness under Article 38.072. The trial
court found that Jade “is not available as a witness,”18 and that in any event, the
statement made by Lisa to Jade “was a general statement lacking the specificity to
qualify as an outcry statement.” In a motion to reconsider this ruling, Petty conceded
that Jade was an unavailable witness, noting that “[t]here was clear evidence that [Jade]
refused to testify about the subject matter despite a court order to do so.”19
2. Applicable Law and the Standard of Review
Hearsay is generally inadmissible. Tex. R. Evid. 802. But Article 38.072
establishes an exception to the hearsay rule for a statement made by a child or
18
While Jade did not appear at the outcry hearing, she did appear at trial after a
writ of attachment was issued compelling her attendance. At trial, Jade testified that
she did not want to be there. She stated that she had declined to meet with the State
to discuss the case and admitted that she had told an investigator working with the
State that she did not want to be involved in the case and that since Lisa was an adult,
Lisa could “deal with all of this[.]”
The trial court denied Petty’s motion to reconsider its order designating
19
Althouse as the outcry witness.
11
disabled victim “to the first person, 18 years of age or older, other than the defendant,
to whom the [victim] . . . made a statement about the offense.” Tex. Code Crim.
Proc. Ann. art. 38.072, § 2(a)(3). Article 38.072 requires more than “a general allusion
that something in the area of child abuse was going on.” Garcia v. State, 792 S.W.2d
88, 91 (Tex. Crim. App. 1990). To be a proper outcry statement, the child’s statement
to the witness must describe the alleged offense, or an element of the offense, in some
discernible manner. See id. As a general rule, in order to describe the alleged offense
in a discernible manner, the statement must contain the “how,” “when,” or “where”
the offense allegedly transpired. Garcia v. State, No. 02-17-00081-CR, 2018 WL
1095692, at *1 (Tex. App.—Fort Worth Mar. 1, 2018, no pet.) (mem. op., not
designated for publication). An outcry witness is event-specific rather than person-
specific. Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011). Thus, a trial
court may admit hearsay testimony from more than one outcry witness under Article
38.072 only if the witnesses testify about different events; for any one event, there
may be only one “first person . . . to whom the [victim] . . . made a statement about
the offense[.]” Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a)(3); see Lopez,
343 S.W.3d at 140.
Courts interpreting Article 38.072 have held that the “‘first person’ refers to the
first adult who can remember and relate at trial the child’s statement that in some
discernible manner describes the alleged offense.” Dority v. State, 631 S.W.3d 779, 792
(Tex. App.—Eastland 2021, no pet.); Foreman v. State, 995 S.W.2d 854, 859 (Tex.
12
App.—Austin 1999, pet. ref’d). Thus, when an adult does not remember the outcry
or refuses to cooperate with the prosecution, the adult cannot be the outcry witness.
See, e.g., Carty v. State, 178 S.W.3d 297, 306 (Tex. App.—Houston [1st Dist.] 2005, pet.
ref’d) (holding that victim’s mother was not the proper outcry witness because she
refused to cooperate with the State, was under indictment for failing to report the
abuse, and refused to admit that the victim had made an outcry); Foreman, 995 S.W.2d
at 859 (holding that victim’s mother and stepfather were not proper outcry witnesses
when they both testified that they had no memory of the outcry); Anderson v. State,
831 S.W.2d 50, 54 (Tex. App.—Fort Worth 1992, pet. ref’d) (holding that victim’s
mother was not the proper outcry witness because she refused to cooperate with
authorities and had refused to admit that the abuse had been reported to her).
A trial court has broad discretion to determine which of several witnesses is an
outcry witness to a particular event, and unless the trial court clearly abuses its
discretion, we will not disturb its decision. Starkey v. State, No. 02-18-00192-CR, 2019
WL 3819505, at *7 (Tex. App.—Fort Worth Aug. 15, 2019, pet. ref’d) (mem. op., not
designated for publication); Chapman v. State, 150 S.W.3d 809, 813 (Tex. App.—
Houston [14th Dist.] 2004, pet. ref’d).
3. Analysis
As a preliminary matter, we will address an argument made in the State’s
response brief that we should overrule Petty’s first issue because the trial court found
13
that Althouse was the proper outcry witness under two independent grounds and
Petty has failed to challenge both of those grounds on appeal.
When reviewing a trial court’s ruling, an appellate court will uphold the ruling if
it is correct on any theory of law applicable to the case. State v. Copeland, 501 S.W.3d
610, 612–13 (Tex. Crim. App. 2016). A theory of law is applicable to a case when it is
litigated at the trial-court level. Id. at 613. “An appellant must attack all independent
grounds supporting a trial court’s ruling.” Marsh v. State, 343 S.W.3d 475, 479 (Tex.
App.—Texarkana 2011, pet. ref’d). If a trial court’s ruling can be sustained on an
independent ground, an appellant must challenge all grounds on appeal. Id. When an
appellant fails to challenge all independent grounds supporting the trial court’s ruling
on appeal, we must affirm the trial court’s ruling on the unchallenged ground. Id.At the trial-court level, the State argued that Althouse was the proper outcry
witness on two independent grounds: (1) that Jade’s refusal to cooperate with the
prosecution and refusal to show up at the outcry hearing made her unavailable as the
outcry witness, and (2) that the statement Lisa made to Jade was only a generalized
statement of abuse. The trial court agreed with the State, finding that Jade was not
available as a witness and that the statement made by Lisa to Jade “was a general
statement lacking the specificity to qualify as an outcry statement.” On appeal, Petty
does not challenge the first ground for the trial court’s ruling. That ground provided
an independent basis for the trial court’s ruling that Althouse was the proper outcry
witness. See Carty, 178 S.W.3d at 306; Foreman, 995 S.W.2d at 859; Anderson,
14
831 S.W.2d at 54. Because Petty has failed to challenge that independent ground on
appeal, we must affirm the trial court’s designation of Althouse as the proper outcry
witness. See Marsh, 343 S.W.3d at 479.
But even if we were to assume that Petty had challenged both independent
grounds for the trial court’s ruling on appeal, his first issue would be unavailing. The
crux of Petty’s first issue focuses on Vermillion’s testimony that Lisa had told Jade
that Lisa was “messing around” with Petty—testimony that aided the trial court in
designating Althouse as the outcry witness and that ultimately led to Althouse
testifying at trial regarding the statements Lisa told her during the forensic interviews.
Petty objected to that testimony on hearsay and Confrontation Clause grounds, and
the trial court overruled the objections. On appeal, Petty argues that the trial court
abused its discretion by overruling those objections and that by overruling those
objections, the trial court improperly designated Althouse as the outcry witness.
However, at the pretrial hearing, Althouse also testified that Lisa had told Jade that
Lisa and Petty “had messed around.” That testimony came in without objection.
Generally, a party must object each time that objectionable evidence is offered.
Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Martinez v. State, 98 S.W.3d
189, 193 (Tex. Crim. App. 2003); Clay v. State, 361 S.W.3d 762, 766 (Tex. App.—Fort
Worth 2012, no pet.). “[W]hen a defendant objects to evidence at trial but later allows
substantially the same evidence to be admitted without objection, any error in
admitting the objected-to evidence is waived.” Garcia v. State, 6 S.W.3d 765, 767 (Tex.
15
App.—Fort Worth 1999, pet. ref’d). By failing to object to Althouse’s pretrial
testimony that Lisa had told Jade that Lisa and Petty “had messed around,” Petty has
waived any complaint to Vermillion’s pretrial testimony that Lisa had told Jade that
Lisa was “messing around” with Petty.20 Gueder, 115 S.W.3d at 13; Garcia, 6 S.W.3d at
767.
But even if Petty had challenged both independent grounds for the ruling, even
if Petty had not waived this complaint, and even if the trial court had abused its
discretion by designating Althouse as the outcry witness, the record does not
demonstrate that Petty was harmed. Generally, the erroneous admission or exclusion
of evidence is nonconstitutional error governed by Rule 44.2(b). See Tex. R. App.
P. 44.2(b); Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). That Rule
requires us to disregard any nonconstitutional error that does not affect an appellant’s
substantial rights. Tex. R. App. P. 44.2(b). A substantial right is affected when the
error had a “substantial and injurious effect or influence in determining the jury’s
verdict.” Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005); see King v. State,
953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S.
750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an error does not affect a
substantial right if the appellate court has a fair assurance from an examination of the
Because we have held that Petty has waived this complaint, we need not
20
address the State’s argument that the Confrontation Clause and hearsay rules do not
apply to pretrial outcry hearings. See Tex. R. App. P. 47.1.
16
record as a whole that the error did not influence the jury or that it had but a slight
effect. Macedo v. State, 629 S.W.3d 237, 240 (Tex. Crim. App. 2021). In our harm
analysis, we consider (1) the character of the alleged error and how it might be
considered in connection with other evidence, (2) the nature of the evidence
supporting the verdict, (3) the existence and degree of additional evidence indicating
guilt, and (4) whether the State emphasized the complained-of error. Id.; Motilla v.
State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
Here, Althouse’s testimony at trial regarding the assault was largely cumulative
of Lisa’s testimony at trial regarding the assault. Althouse testified that Lisa told her
that Petty put his “private part that goes pee” in her “private part . . . that goes pee,”
while Lisa testified that Petty put his penis in her vagina. Althouse testified that Lisa
described the incident as occurring at night in the “kids’ room” in the Avenue G
house while the other children were asleep in the room, while Lisa testified that the
incident occurred at night in the “kids’ room” in the Kemp house while other children
were asleep in the room. Althouse testified that Lisa described pain from the assault
and described that her private parts felt wet following the assault, and Lisa testified
that the abuse was painful and that she noticed that her vagina was wet after the
assault. Such cumulative testimony from an outcry witness is harmless when the child
victim also testifies about the abuse. See Land v. State, 291 S.W.3d 23, 28–31 (Tex.
App.—Texarkana 2009, pet. ref’d) (holding that admission of recording of child’s
interview given at advocacy center was erroneous but harmless because recording was
17
cumulative of victim’s properly admitted live testimony); Duncan v. State, 95 S.W.3d
669, 672 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (holding that improper
admission of outcry testimony was harmless when similar testimony was admitted
through victim).
Moreover, apart from Lisa’s testimony regarding the assault, the DNA evidence
also provides overwhelming evidence to support Petty’s conviction. Webb testified
that
• the probability that a randomly selected man would be excluded as
being Lyle’s biological father was greater than 99.99 percent and that
Petty could not be excluded as being Lyle’s biological father;
• that it is 144,000 times more likely that Petty is Lyle’s biological
father than that a randomly selected, unrelated male is his biological
father; and
• that “based upon the most conservative probability of paternity
statistics, and ignoring all non-genetic information, the probability
that [Petty] is the biological father of [Lyle] is greater than 99.99
percent.”
Such DNA evidence renders any error in the admission of Althouse’s outcry
testimony harmless. See Carter v. State, No. 14-20-00163-CR, 2021 WL 4434109, at *3
(Tex. App.—Houston [14th Dist.] Sept. 28, 2021, pet. ref’d) (mem. op., not
designated for publication) (“Because. . . DNA evidence overwhelmingly
demonstrated appellant’s guilt, we cannot say that any improper admission of the
outcry testimony had a substantial and injurious effect on the jury’s verdict.”).
18
Accordingly, we conclude, in the context of the entire case against Petty, any
error by the admission of Althouse’s outcry testimony did not have a substantial or
injurious effect on the jury’s verdict and did not affect Petty’s substantial rights. See
King, 953 S.W.2d at 271. Thus, even assuming error, we disregard it. See Tex. R. App.
P. 44.2(b). We overrule Petty’s first issue.
B. Petty’s Complaint That the Trial Court Refused to Admit Evidence
Regarding Sexual Conduct Between Lisa and Scott
In his second issue, Petty argues that the trial court abused its discretion by
refusing to admit evidence regarding sexual conduct between Lisa and her older
brother, Scott. In response, the State argues, among other things, that Texas Rule of
Evidence 412 prohibited such evidence, that Petty forfeited his argument that the
State opened the door to such evidence, and that any error made by the trial court was
harmless.
1. Background to Petty’s Complaint
During trial, Petty’s counsel informed the trial court that he wished to “get into
the fact that . . . [Lisa] had some kind of sexual relationshi[p] with [Scott] around the
same time as she claimed [Petty] committed the crime.” The State objected, citing
Rule 412. See Tex. R. Evid. 412. Petty’s counsel responded that Rule 412 does not
apply because it “excludes past sexual activity, and this is present sexual activity in
relation to the crime[.]” The trial court did not rule on the admissibility of the
evidence at that time.
19
Later, after Vermillion testified that he had spoken to Scott, Petty’s counsel
again argued that he should be able to ask questions regarding Lisa and Scott’s sexual
relationship, again arguing that “it’s not past sexual history. It’s present sexual
history.” The State argued that Rule 412 required the exclusion of such evidence and
that such evidence would be prejudicial. The trial court agreed with the State.
The following exchange later occurred between Petty’s counsel and Vermillion:
Q. [T]he DNA samples of the alleged victim and her child, were those
taken voluntarily?
A. I got consent from the mother. The victim’s mother.
Q. Did you obtain a search warrant to obtain the DNA?
A. I did for Mr. Petty – I’m sorry. Yes, I did. I’m sorry. I did
get – I had her sign a consent for her other children, but not – but it was
a search warrant for the victim and the infant.
Q. So – I’m sorry. I didn’t quite understand. Did you obtain a
search warrant for the victim and the victim’s child?
A. Yes.
Q. Okay. So – but you also obtained a consent form?
A. Yeah. The consent form was for the older children that were
in the house, the older brother, [Scott].
Petty’s counsel then approached the bench, and he argued that in light of
Vermillion’s statement that Vermillion had obtained a DNA consent form for Scott,
he should be able to ask further questions regarding Scott’s sexual relationship with
Lisa. Petty’s counsel cited Rule 107 of the Texas Rules of Evidence, the rule of
20
optional completeness, to support his argument. See Tex. R. Evid. 107. In addition,
Petty’s counsel once again argued that the evidence should not be excluded under
Rule 412 because it related to present conduct, not past conduct. After hearing
arguments from both sides regarding the issue, the trial court excluded the evidence
of Lisa’s sexual relationship with Scott.
The trial court later admitted an exhibit, for record purposes only, to serve as
Petty’s offer of proof regarding the excluded evidence. That exhibit was an excerpt of
Vermillion’s investigation report, and it noted that on September 10, 2015—the day
between the first and second forensic interviews—Jade contacted the CPS
investigator and informed her that Lisa and Scott needed to tell authorities something.
The exhibit notes that Vermillion met with Jade, Lisa, and Scott, and Jade informed
Vermillion that Lisa and Scott had both told her that they had had sexual intercourse.
It further reflects that Scott told Vermillion that he had had sex with Lisa, although
Scott could not explain what sex was.21 The exhibit also recounts that Scott and Lisa
told Jade that they had had sex “when they were living on Britain Street.” It further
reflects that the family lived on Britain Street “sometime in early 2014,” that the
family then moved to an address on 9th Street where they lived for “about 9 months
21
Vermillion’s report notes that Scott “has documented retardation and
mentally functions at a much lower level” and that Vermillion did not “believe [Scott]
has the mental capacity to understand what sex is or if he even engaged in it.” It also
reflects that Scott was fourteen years old at the time.
21
(most of 2014),” before they moved to the Avenue G house “near the end of 2014,”
before moving to 7th Street, and then moving to the Kemp house “in early . . . 2015.”
2. Applicable Law and the Standard of Review
Rule 412, known as the rape shield law, governs the admissibility of a
complainant’s prior sexual relationships with third parties in a sexual-assault case. See
Tex. R. Evid. 412. Rule 412 attempts to limit abusive, embarrassing, and irrelevant
inquiries into a complainant’s private life and to encourage victims of sexual assault to
report the crimes committed against them. Green v. State, No. 02-10-00082-CR, 2011
WL 3426278, at *5 (Tex. App.—Fort Worth Aug. 4, 2011, pet. ref’d) (mem. op., not
designated for publication). The admissibility of a complainant’s past sexual behavior
is subject to a two-part test: (1) the evidence must fall within one of the five
enumerated circumstances in Rule 412(b)(2), and (2) its probative value must
outweigh the danger of unfair prejudice. Tex. R. Evid. 412(b)(2)–(3); Bullock v. State,
No. 10-19-00031-CR, 2020 WL 103692, at *1 (Tex. App.—Waco Jan. 8, 2020, no
pet.) (mem. op., not designated for publication).
We review a trial court’s decision to admit or exclude evidence under an abuse-
of-discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000);
Green, 2011 WL 3426278, at *4. A trial court does not abuse its discretion as long as
the decision to admit or to exclude evidence is within the zone of reasonable
disagreement. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (op. on
reh’g); Green, 2011 WL 3426278, at *4.
22
3. Analysis
On appeal, Petty argues that Rule 412 does not apply because the sexual
conduct between Lisa and Scott was “present” sexual conduct and not “past” sexual
conduct.22 We disagree. The exhibit offered by Petty reflects that Scott and Lisa had
sex while the family was living on Britain Street. It further reflects that the family
lived on Britain Street until sometime in early 2014, when they moved to 9th Street,
where they lived for about nine months. The sexual encounter that occurred between
Lisa and Scott on Britain Street in early 2014 has no bearing on the sexual assault that
occurred to Lisa during late 2014 or early 2015. Because the sexual encounter
between Lisa and Scott occurred almost a year before the sexual assault at issue in this
case, we hold that Rule 412 applies. See Tex. R. Evid. 412(a)(2); Green, 2011 WL
3426278, at *5.
Because Rule 412 applies, to introduce evidence of Lisa’s sexual relationship
with Scott, Petty was required to prove that the evidence falls within one of the five
enumerated circumstances in Rule 412(b)(2). See Tex. R. Evid. 412(b)(2); Bullock,
22
To support his argument that Rule 412 does not apply, Petty points us to an
unpublished concurring opinion by Justice Yeary on the Court of Criminal Appeals.
See Ukwuachu v. State, PD-0366-17, 2018 WL 2711167, at *10 (Tex. Crim. App. June 6,
2018) (not designated for publication) (Yeary, J., concurring). In that opinion, Justice
Yeary discussed whether Rule 412 applied to text messages that referred to potential
sexual conduct in the future. Id. That discussion has no relevance to the evidence at
issue here—prior sexual conduct. Indeed, in his concurring opinion, Justice Yeary
noted that if the text messages had referred to past sexual behavior between the
victim and someone other than the defendant, the messages “would be absolutely
inadmissible under the terms of Rule 412(a)(2).” Id.23
2020 WL 103692, at *1. Those circumstances require that the evidence: (1) is
necessary to rebut or explain scientific or medical evidence offered by the prosecutor,
(2) concerns past sexual behavior with the defendant and is offered by the defendant
to prove consent, (3) relates to the victim’s motive or bias, (4) is admissible under
Rule 609, or (5) is constitutionally required to be admitted. Tex. R. Evid. 412(b)(2).
Here, Petty makes no argument to suggest that any of the circumstances apply.23 We
thus hold that the trial court did not abuse its discretion by excluding the evidence of
Lisa and Scott’s relationship under Rule 412. See Tex. R. Evid. 412(b)(2); Bullock,
2020 WL 103692, at *1.
In his brief, Petty argues that even if Rule 412 would otherwise bar the
evidence, the trial court still abused its discretion by excluding the evidence because
Vermillion’s testimony that he had obtained a DNA consent form for Scott “opened
the door” to evidence of Lisa’s sexual relationship with Scott. To support his
argument, Petty cites generally to the common-law admissibility rule, and he concedes
that Rule 107—the Rule he relied on to support his argument at trial—does not apply.
In its brief, the State argues that Petty has forfeited his common-law opening-the-
door theory because he did not make that argument at trial. We agree with the State.
At trial, Petty did not raise the argument he now makes on appeal based on the
common-law admissibility rule; instead, he relied on Rule 107, a Rule that Petty now
23
Nor has Petty argued that the probative value of the evidence outweighs the
danger of unfair prejudice. See Tex. R. Evid. 412(b)(3).
24
acknowledges does not apply. By failing to urge his common-law theory to the trial
court, Petty has forfeited his complaint on appeal. See Tex. R. App. P. 33.1(a)(1)(A);
Golliday v. State, 560 S.W.3d 664, 669 (Tex. Crim. App. 2018) (“Appellant was
responsible for preserving the error he sought to raise on appeal by specifically
articulating the legal basis for his proffer at trial.”); Resendez v. State, 306 S.W.3d 308,
314 (Tex. Crim. App. 2009) (“[A] complaint that could, in isolation, be read to express
more than one legal argument will generally not preserve all potentially relevant
arguments for appeal.”).
But even if the trial court had abused its discretion by refusing to admit
evidence regarding the sexual relationship between Lisa and Scott, the record does not
demonstrate that Petty was harmed. As we noted above, generally, the erroneous
admission or exclusion of evidence is nonconstitutional error governed by
Rule 44.2(b).24 See Tex. R. App. P. 44.2(b); Solomon, 49 S.W.3d at 365. That Rule
24
In his brief, Petty suggests that we should use the constitutional-harm analysis
embodied in Rule 44.2(a). See Tex. R. App. P. 44.2(a). We disagree. The improper
exclusion of evidence may raise a constitutional violation when a trial court
erroneously excludes evidence that is vital to the case, and the exclusion precludes the
defendant from presenting a defense. Tillman v. State, 376 S.W.3d 188, 198 (Tex.
App.—Houston [14th Dist.] 2012, pet. ref’d) (citing Ray v. State, 178 S.W.3d 833, 835
(Tex. Crim. App. 2005)). “The Court of Criminal Appeals has noted that erroneous
evidentiary rulings rarely rise to the level of denying a fundamental constitutional right
to present a meaningful defense.” Id. (citing Wiley v. State, 74 S.W.3d 399, 405 (Tex.
Crim. App. 2002)). Indeed, “[a] constitutional violation arises only where the trial
court’s clearly erroneous ruling excludes otherwise relevant, reliable evidence forming
such a vital portion of the case that exclusion effectively precludes the defendant from
presenting a defense.” Id. Here, the evidence that Petty sought to introduce did not
preclude him from presenting a defense at trial. Indeed, at trial, Petty was able to
25
requires us to disregard any nonconstitutional error that does not affect an appellant’s
substantial rights. Tex. R. App. P. 44.2(b). And as we stated above, a substantial right
is affected when the error had a “substantial and injurious effect or influence in
determining the jury’s verdict.” Haley, 173 S.W.3d at 518. Conversely, an error does
not affect a substantial right if the appellate court has a fair assurance from an
examination of the record as a whole that the error did not influence the jury or that it
had but a slight effect. Macedo, 629 S.W.3d at 240.
Here, the evidence that the trial court excluded would have done nothing to
cast doubt on Petty’s guilt. The excluded evidence would have merely reflected that
Lisa and Scott had sex in early 2014 while they were living on Britain Street. Given
that Lisa had her period in December 2014, and given Lyle’s October 2015 birth, the
sexual encounter between Lisa and Scott in early 2014 does nothing to suggest that
Petty did not sexually assault Lisa in late 2014 or early 2015. And, here (and as
discussed more below when addressing Petty’s sufficiency argument), there is
substantial evidence to support Petty’s conviction—namely, Lisa’s testimony
regarding the assault and Webb’s testimony that the probability that Petty is Lyle’s
biological father is greater than 99.99 percent. Accordingly, we conclude that in the
context of the entire case against Petty, any error in excluding the evidence of Lisa
present a defense that focused on the argument that Lisa was lying and that the DNA
evidence was incorrect. The exclusion of the evidence that Lisa and Scott had
engaged in sexual conduct in early 2014 did not prevent Petty from presenting a
defense.
26
and Scott’s sexual relationship did not have a substantial or injurious effect on the
jury’s verdict and did not affect Petty’s substantial rights. See King, 953 S.W.2d at 271.
Thus, even assuming error, we disregard it. See Tex. R. App. P. 44.2(b). We overrule
Petty’s second issue.
C. Petty’s Complaint Regarding the Sufficiency of the Evidence
In his third issue, Petty argues that the evidence is insufficient to support his
conviction. He further argues that there was enough exculpatory evidence so that no
rational jury could have found, beyond a reasonable doubt, that Petty was the person
who sexually assaulted Lisa. In response, the State argues that the evidence is
sufficient to support Petty’s conviction.
1. Standard of Review
In our evidentiary-sufficiency review, we view all the evidence in the light most
favorable to the verdict to determine whether any rational factfinder could have found
the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex.
Crim. App. 2017). This standard gives full play to the factfinder’s responsibility to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at
2789; Harrell v. State, 620 S.W.3d 910, 914 (Tex. Crim. App. 2021).
The factfinder alone judges the evidence’s weight and credibility. See Tex. Code
Crim. Proc. Ann. art. 38.04; Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App.
27
2021). We may not re-evaluate the evidence’s weight and credibility and substitute
our judgment for the factfinder’s. Queeman, 520 S.W.3d at 622. Instead, we determine
whether the necessary inferences are reasonable based on the evidence’s cumulative
force when viewed in the light most favorable to the verdict. Braughton v. State,
569 S.W.3d 592, 608 (Tex. Crim. App. 2018); see Villa v. State, 514 S.W.3d 227, 232
(Tex. Crim. App. 2017) (“The court conducting a sufficiency review must not engage
in a ‘divide and conquer’ strategy but must consider the cumulative force of all the
evidence.”). We must presume that the factfinder resolved any conflicting inferences
in favor of the verdict, and we must defer to that resolution. Braughton, 569 S.W.3d at
608.
2. Analysis
A person commits the offense of aggravated sexual assault of a child if (1) the
person intentionally or knowingly causes the penetration of the sexual organ of a child
by any means or causes the child’s sexual organ to contact the actor’s sexual organ,
and (2) the victim is younger than fourteen years of age. Tex. Penal Code
Ann. § 22.021(a)(1)(B)(i), (iii), (a)(2)(B). The indictment alleged that Petty
intentionally or knowingly caused the penetration of Lisa’s sexual organ by his sexual
organ and that Lisa was a child younger than fourteen years of age at the time of that
act.
Here, Lisa testified at trial that Petty had raped her. She described Petty
coming into her room while she was sleeping, him pulling down his pants and getting
28
on top of her, and him putting his penis in her vagina. She also testified that she was
twelve when the assault occurred. This evidence is sufficient to support Petty’s
conviction.25 See Rickard v. State, No. 02-18-00350-CR, 2019 WL 4866037, at *5 (Tex.
App.—Fort Worth Oct. 3, 2019, pet. ref’d) (mem. op., not designated for publication)
(holding that the testimony of a child sexual-assault victim alone is sufficient to
support a conviction for aggravated sexual assault); Glockzin v. State, 220 S.W.3d 140,
147 (Tex. App.—Waco 2007, pet. ref’d) (same).
Moreover, Webb testified at trial that the probability that a randomly selected
man would be excluded as being Lyle’s biological father was greater than 99.99
percent and that Petty could not be excluded as being Lyle’s biological father. Webb
also testified that it was 144,000 times more likely that Petty is Lyle’s biological father
than a randomly selected, unrelated male. Webb ultimately concluded that “the
probability that [Petty] is the biological father of [Lyle] is greater than 99.99 percent.”
This evidence is independently sufficient to support Petty’s conviction. See Coria-
Gonzalez v. State, No. 03-18-00645-CR, 2020 WL 465856, at *4 (Tex. App.—Austin
25
In his brief, Petty argues that there was exculpatory evidence before the jury
that proved that he did not sexually assault Lisa. He points to things like Lisa not
being able to recall exactly when the assault took place, Lisa not attempting to wake
others in the room during the assault, Lisa lying during the first forensic interview,
and Lisa’s use of the word “rape” during the second forensic interview. This
evidence, according to Petty, was indicative of coaching. But that evidence goes to
Lisa’s credibility, and the jury, as the factfinder, is the sole judge of the evidence’s
weight and credibility. See Tex. Code Crim. Proc. Ann. art. 38.04; Martin, 635 S.W.3d
at 679.
29
Jan. 29, 2020, no pet.) (mem. op., not designated for publication) (holding that “DNA
evidence alone can be legally sufficient to establish the identity of the perpetrator of a
crime”); Roberson v. State, 16 S.W.3d 156, 168 (Tex. App.—Austin 2000, pet. ref’d)
(concluding that DNA evidence alone was legally sufficient to establish perpetrator’s
identity and to support conviction for aggravated sexual assault); Williams v. State,
848 S.W.2d 915, 916–17 (Tex. App.—Texarkana 1993, no pet.) (concluding that
evidence was legally sufficient to support conviction for aggravated sexual assault
when only evidence connecting defendant to assault was DNA analysis).
Viewing this evidence—and the other evidence detailed in the factual
background section above—in the light most favorable to the verdict, a rational juror
could have found beyond a reasonable doubt that Petty intentionally or knowingly
caused the penetration of Lisa’s sexual organ by his sexual organ and that Lisa was a
child younger than fourteen years of age at the time of that act. See Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Braughton, 569 S.W.3d at 608. Thus, the evidence is sufficient
to support Petty’s conviction for aggravated sexual assault of a child. See Tex. Penal
Code Ann. § 22.021(a)(1)(B)(i), (iii), (a)(2)(B). We overrule Petty’s third issue.
IV. CONCLUSION
Having overruled Petty’s three issues, we affirm the trial court’s judgment.
30
/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: September 29, 2022
31