                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-09-00193-CR
                              NO. 02-09-00194-CR


JEFFREY LEE LITTLEPAGE                                              APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


                                    ------------

     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

                                    ------------

                        MEMORANDUM OPINION1

                                     ----------

      A jury convicted Appellant Jeffrey Lee Littlepage of three counts of

aggravated sexual assault of a child—by digital penetration, oral-genital contact,

and genital-genital contact—and two counts of indecency with a child by

contact—by touching the child’s female sexual organ and breast. Appellant pled

true to the repeat offender notice in both indictments, and the trial court

sentenced him to twenty years’ confinement on each conviction for indecency

      1
       See Tex. R. App. P. 47.4.
with a child and sixty years’ confinement on each conviction for aggravated

sexual assault of a child, with all sentences running concurrently. In ten issues,

Appellant contends that the evidence is insufficient to support his convictions,

that the trial court abused its discretion in admitting and excluding certain

evidence, that the trial court erred by denying his objection to the State’s

improper closing argument, and that the two judgments for indecency with a child

by contact should be modified. Because we hold that the evidence is sufficient to

support all five convictions, that Appellant forfeited two of his complaints, that the

trial court did not abuse its discretion by excluding evidence of a prior allegation

by one complainant, and that the trial court’s judgments for indecency with a child

by contact should be modified, we affirm the trial court’s three judgments for

aggravated sexual assault of a child, and we affirm as modified the trial court’s

two judgments for indecency with a child by contact.

I. Background Facts

      The two complainants, J.S. and S.S., are sisters and are Appellant’s

nieces.   When they were nine and eight years old, respectively, they visited

Appellant and his wife at Appellant’s home in Tarrant County on Christmas 2007.

The girls made an outcry to an aunt, Dalena W., in January 2008 and in turn to

the paternal aunt with whom they lived, Stephanie S., regarding Appellant’s

conduct. Stephanie took the girls to Cook Children’s Medical Center, where they

spoke with a sexual assault nurse, Crystal Utley, and underwent sexual assault

examinations. The results of the examinations were normal.

II. Evidence Sufficiently Supports Appellant’s Five Convictions

      In his fourth through eighth issues, Appellant contends that the evidence is

factually insufficient to support his five convictions. After the parties briefed this


                                          2
case on appeal, the Texas Court of Criminal Appeals held ―that there is no

meaningful distinction between a Clewis factual-sufficiency standard and a

Jackson v. Virginia legal-sufficiency standard‖ and that

      the Jackson v. Virginia standard is the only standard that a reviewing
      court should apply in determining whether the evidence is sufficient
      to support each element of a criminal offense that the State is
      required to prove beyond a reasonable doubt. All other cases to the
      contrary, including Clewis, are overruled.2

      Accordingly, we apply the Jackson standard of review to all of Appellant’s

sufficiency complaints.3 In reviewing the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the

prosecution in order to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.4

      This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.5 The trier of fact is the sole judge of

the weight and credibility of the evidence.6 Thus, when performing a sufficiency

review, we may not re-evaluate the weight and credibility of the evidence and

      2
      Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *14 (Tex. Crim.
App. Oct. 6, 2010).
      3
       Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979).
      4
       Id. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2007).
      5
       Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.
      6
       See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State,
270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075
(2009).


                                          3
substitute our judgment for that of the factfinder.7       Instead, we ―determine

whether the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to

the verdict.‖8   We must presume that the factfinder resolved any conflicting

inferences in favor of the prosecution and defer to that resolution.9

      A. Counts of Indecency with a Child by Contact

      J.S., ten years old at trial, testified that Appellant touched her with his

hands underneath her panties on her ―middle spot‖ and answered, ―Yes,‖ when

the prosecutor asked her if that was where she ―pee[d]‖ from.            J.S. also

demonstrated where and how Appellant touched her ―middle spot‖ by using an

anatomically correct doll. J.S. denied that Appellant had touched her breast.

      Stephanie testified that J.S. had told her that Appellant was ―feeling on her

private.‖   Utley testified that J.S. had told her that Appellant had digitally

penetrated her female sexual organ and had touched her genitals and chest

area. Utley clarified that J.S. was referring to the breast area, where her nipples

are. Employing the Jackson standard of review, we hold that the evidence is

sufficient to support Appellant’s two convictions for indecency with a child by

contact. We overrule his seventh and eighth issues.




      7
      Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert.
denied, 529 U.S. 1131 (2000).
      8
       Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007).
      9
       Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.


                                         4
      B. Counts of Aggravated Sexual Assault of a Child

      Nine years old at trial, S.S. testified that Appellant touched her private with

his private and demonstrated with anatomically correct dolls. She testified that

he pulled her panties down and that his private went inside of her private.

Stephanie testified that S.S. told her that Appellant pulled down her pants and

―stuck his thing‖ in her; Utley testified that S.S. told her,

      Jeff did something bad. He put his thing inside of me. . . .
      Something wet came out of his thing. It went in my panties. I took a
      bath. He did it more than once at his house. It started when I was
      seven.

      S.S. also testified that Appellant digitally penetrated her female sexual

organ and demonstrated with the anatomically correct doll. Utley testified that

S.S. told her that Appellant put his finger inside of S.S., and Utley explained that

S.S. meant that Appellant had penetrated her.

      S.S. also testified that Appellant had pulled her panties down and had put

his mouth on her ―private.‖ Utley testified that S.S. had told her that Appellant

had put his mouth on her female sexual organ and had licked it.

      Employing the Jackson standard of review, we hold that the evidence is

sufficient to support Appellant’s three convictions for aggravated sexual assault

of a child. We overrule his fourth, fifth, and sixth issues.

III. Evidence About S.S.’s Prior Allegation Properly Excluded

      In his first issue, Appellant contends that the trial court erred by excluding

evidence that S.S. had previously made a false accusation.            The following

exchange took place at trial when defense counsel questioned S.S.:

      Q.     Okay. Did you—do you—well, if you don’t remember talking
             to Lindsey Dula, you probably don’t remember this, but do you



                                            5
            remember telling her or someone that no one had ever
            touched you besides [Appellant]?

      A.    Yes.

      Q.    And is it true that nobody else had ever touched you?

      [PROSECUTOR]: Objection, relevance.            We’ve got a motion in
                    limine—

      A.    Yes.

      [PROSECUTOR]: Excuse me. Hold on a second.

      THE COURT:          Hold on.

      [PROSECUTOR]: We’ve got a motion in limine on this. If we’re—
                    we need to have a hearing.

      THE COURT:          Sustained.

The State did not object to S.S.’s testimony that she remembered telling

someone that no one but Appellant had ever touched her. Nor does the record

reflect that the trial court instructed the jury to disregard her post-objection but

pre-ruling answer that it was true that no one else had ever touched her.

      In the hearing that occurred outside the presence of the jury following the

exchange, the trial court announced,

             Okay. In reviewing the case law, it seems clear that under
      608(b) and 412, specific instances of conduct involving the victim
      would not be admissible, unless there’s a showing specifically that it
      was under similar circumstances as the current case, as well as that
      there was a finding that those allegations were false. . . . [D]ue to
      the age of the child, what I would like to do is for y’all to just proffer
      orally what basis you have—good-faith basis or documentation that
      you have that would establish either of those grounds.




                                          6
No one objected to the unavailability of S.S. to be called as a witness in the

hearing despite her trial testimony in open court prior to the hearing, nor did

anyone object to not being allowed to call other witnesses at the hearing.

      Appellant wanted to question S.S. before the jury about a prior outcry that

she had made against a man who had allegedly touched her female sexual

organ. According to a police report, which the trial court admitted for purposes of

the record, S.S. had claimed in a CPS interview that a family friend had touched

her female sexual organ by placing his hand on top of her clothing and rubbing

with his hand. The investigative police officer had closed the investigation after

interviewing the alleged perpetrator but not the complainant or the complainant’s

family, because they would not appear for interviews, or the CPS caseworker

who took S.S.’s videotaped statement and alerted the police, because that

worker was no longer with the agency.             The officer had concluded that the

allegations were ―unfounded.‖ Specifically, he stated in his report that he did not

―see any reason based upon the evidence and non-cooperation from the victim’s

family to continue with this investigation‖ and that the alleged perpetrator, who

denied the allegations, ―appeared to be telling the truth.‖          The videotaped

statement was not discussed in the hearing or entered into evidence, and there is

no indication that the officer reviewed it.

      Appellant conceded at trial that rules 608 and 412 would bar him from

delving into the prior allegation but argued that rule 613 would allow him to

impeach S.S. with the evidence and contended that the trial court’s refusal to


                                              7
allow him to ask S.S. about the prior alleged incident before the jury violated his

rights of confrontation, a fair trial, and effective assistance of counsel.    On

appeal, Appellant mentions no rules but limits his argument to alleged violations

of his right to fully cross-examine his accuser.

      Rule 613 provides,

             (a) Examining Witness Concerning Prior Inconsistent
      Statement. In examining a witness concerning a prior inconsistent
      statement made by the witness, whether oral or written, and before
      further cross-examination concerning, or extrinsic evidence of, such
      statement may be allowed, the witness must be told the contents of
      such statement and the time and place and the person to whom it
      was made, and must be afforded an opportunity to explain or deny
      such statement. If written, the writing need not be shown to the
      witness at that time, but on request the same shall be shown to
      opposing counsel. If the witness unequivocally admits having made
      such statement, extrinsic evidence of same shall not be admitted.
      This provision does not apply to admissions of a party-opponent as
      defined in Rule 801(e)(2).

             (b) Examining Witness Concerning Bias or Interest. In
      impeaching a witness by proof of circumstances or statements
      showing bias or interest on the part of such witness, and before
      further cross-examination concerning, or extrinsic evidence of, such
      bias or interest may be allowed, the circumstances supporting such
      claim or the details of such statement, including the contents and
      where, when and to whom made, must be made known to the
      witness, and the witness must be given an opportunity to explain or
      to deny such circumstances or statement. If written, the writing need
      not be shown to the witness at that time, but on request the same
      shall be shown to opposing counsel. If the witness unequivocally
      admits such bias or interest, extrinsic evidence of same shall not be
      admitted. A party shall be permitted to present evidence rebutting
      any evidence impeaching one of said party's witnesses on grounds
      of bias or interest.




                                          8
            (c) Prior Consistent Statements of Witnesses. A prior
      statement of a witness which is consistent with the testimony of the
      witness is inadmissible except as provided in Rule 801(e)(1)(B).10

      But to preserve error in the exclusion of evidence, the substance of the

excluded evidence must be shown by offer of proof unless it is apparent from the

context of the questions asked.11 Error may be preserved by an offer of proof in

question and answer form or in the form of a concise statement by counsel. 12

Counsel=s concise statement must include a summary of the evidence offered.13

Error is not preserved if the offer of proof is inadequate.14

      Because Appellant did not introduce S.S.’s prior statement itself at the

hearing, did not object to the trial court’s decision to allow no evidence at the

hearing other than the police report, and did not otherwise make an offer of proof

of the excluded testimony by S.S., Appellant did not develop beyond speculation

his theory that S.S. had bias or motive to lie in this case. 15 That is, Appellant did

not provide at the hearing or elsewhere below a sufficient record of the actual, as

      10
         Tex. R. Evid. 613.
      11
         Tex. R. App. P. 33.2; Tex. R. Evid. 103(a)(2).
      12
         Tex. R. Evid. 103(b); Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App.
1998).
      13
         Warner, 969 S.W.2d at 2.
      14
         Mays v. State, 285 S.W.3d 884, 890 (Tex. Crim. App. 2009) (holding
error was not preserved when appellant failed to proffer, with some degree of
specificity, the substantive evidence he intended to present).
      15
         See Tex. R. Evid. 613.


                                          9
opposed to the speculative, evidence that he wished to use to impeach S.S. We

therefore cannot conclude on the record before us that the trial court abused its

discretion or violated Appellant’s right to fully cross-examine his accuser by

barring him from questioning S.S. about the prior incident in the jury’s presence.

We overrule Appellant’s first issue.

IV. Forfeited Complaint Regarding Shawntia M.’s Testimony

      The State offered the testimony of Shawntia M., Appellant’s sister, as

rebuttal testimony. Appellant objected,

      I understand that [the prosecutor] is saying that this is a continuing—
      just one of several continuing patterns or shows a pattern and is
      trying to get this extraneous offense into evidence at this point, and
      we strongly object.

             Obviously, it’s—many, many years ago is not a pattern. If it is
      true—and, of course, this witness is in custody, and we have not had
      the opportunity to visit with her, so we don’t know what she is going
      to say, but I just don’t think it’s admissible, and to allow it would be to
      deny our client his constitutional rights to confrontation and a fair
      trial.

            I mean, it’s just not admissible under the rules. It’s not a
      pattern. Two people—an additional incident is not a pattern.

After Appellant’s initial objection, the prosecutor explained that he was offering

the testimony under rule 404(b) to rebut the defensive theories of lack of

opportunity and fabrication; cited case law to support his argument; stated, ―Your

Honor, if their objection is going to be 403, according to the case law, you’ve got

to do a balancing test, . . . ‖; and argued the four factors of the balancing test.

Appellant responded,



                                          10
       Regarding the State’s great need and—well, basically,
everything the State has said, if—based on his theory, the accused
person of an offense like this would never be able to come in and
defend themselves in order to avoid an extraneous offense or an
alleged extraneous offense come into evidence. We would never be
able to say there was not opportunity.

       That was a fact. We know that people were there. We would
never be able to say or cross-examine the girls, the victims, and try
to challenge their credibility, because somebody else might come in
to testify.

      For years and years, many cases have been tried and people
convicted based on just the testimony of the victim. There is no
great need. He had a video—he said he had no videos. He had a
video. He could have offered it. We don’t know if we would have
objected or not. We might not have.

      As far as fabrication, if we don’t challenge the victims, we
have not done our job. The Court of Appeals would reverse the
conviction based on ineffective assistance of counsel.

        So what [the prosecutor] is saying is we can’t do our job, and if
we do, then, oh, that just blows it open. That does not allow our
client—for a fair trial, allow for effective assistance of counsel, and it
does not allow him his rights to properly confront his accusers, and
it’s just not necessary in this case.

      We would strongly object based on the United States
Constitution, Texas, and Code of Criminal Procedure. That just
not—we object. It’s our opinion it’s not admissible at this point.

      We understand that if we get to the punishment phase, it may
become admissible, but at this point in this case, under these
circumstances, and the testimony that’s been given, it’s not
admissible.

       And if we protected ourselves or did not do all of the things
[the prosecutor] wanted to do, we would be sitting here mute, and
that is certainly not what a defendant is entitled to.




                                   11
      In his second issue on appeal, Appellant contends that the trial court

abused its discretion by ―admitting Shawntia M[.]’s testimony because its

probative value was substantially outweighed by the danger of unfair prejudice

and by the confusion of the issues.‖16 The complaint made on appeal must

comport with the complaint made in the trial court or the error is forfeited. 17 We

agree with the State that Appellant’s objections to the testimony did not preserve

his complaint on appeal.18 We therefore overrule Appellant’s second issue.

V. Objection to State’s Closing Argument Forfeited

      During the State’s final argument in the guilt phase, the prosecutor stated,

             And whether or not you have two kids, two kids, four kids, a
      two-year-old, a 23-month-year-old (sic), a three-year-old, two kids, or
      three kids, you know how to judge the credibility of a child. Those
      girls were telling the truth.

             And the most damning piece of evidence throughout this
      whole trial was not anything anybody said or any evidence that was
      presented to you, but when [J.S.] walked in, [Appellant] sat there
      and hung his head in shame. He couldn’t even look at her. He
      didn’t even look at her until she started testifying. He hung his head
      because he knew that he was in trouble.

            What about Shawntia? I want to be very clear why I brought
      her to you, because they have wasted two days of our time talking
      about how this couldn’t have happened.

      16
        See Tex. R. Evid. 403.
      17
        Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (―Whether a
party=s particular complaint is preserved depends on whether the complaint on
appeal comports with the complaint made at trial.‖).
      18
        See Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265
(Tex. Crim. App. 1998) (op. on reh=g), cert. denied, 526 U.S. 1070 (1999).


                                        12
                [DEFENSE COUNSEL]: Objection, Your Honor. I object to
         that argument, because it is every defendant’s right in this country to
         come in and present a defense. He is misstating the law. He is
         misleading the jury. He is making a statement that is just not true.

               THE COURT: Overruled.

The prosector then repeated that the defense had wasted time twice with no

objection. While the jury was deliberating, defense counsel asked for a mistrial

         based on the argument of the prosecutor . . . when he said
         something to the effect that the Defense has wasted the jurors’ last
         two days by presenting a defense for [Appellant].

                It’s our position that that is striking at the defendant over
         counsel’s shoulder; that is denying or telling the jury that it is right to
         deny any accused citizen their right to a defense, their constitutional
         right to a defense, which, of course, is just absolutely improper
         argument.

               And for that reason, we ask for a mistrial.

The trial court denied the request for mistrial. On appeal, Appellant contends in

his third issue that ―[t]he prosecutor struck at defendant over the shoulders of

counsel during final arguments.‖            This complaint does not comport with

Appellant’s timely objection at trial.19 Appellant’s request for mistrial mirroring his

appellate complaint came during jury deliberations and was therefore untimely.20

Accordingly, Appellant forfeited his complaint.          We overrule Appellant’s third

issue.


         19
          See Pena, 285 S.W.3d at 464.
         20
          See Tex. R. App. P. 33.1(a)(1); Mosley, 983 S.W.2d at 265.


                                             13
VI. Modifying the Two Judgments of Conviction for Indecency with a Child
by Contact

      As Appellant points out in his ninth and tenth issues, the jury convicted him

of the conduct alleged in Count Two and Count Three of the indictment in cause

number 02-09-00194-CR (trial court cause number 1107358D), but the

judgments and the jury charge bear the notations Count One and Count Two,

respectively, regarding such conduct.        It appears that the confusion arose

because the conduct alleged in Count Two is also a lesser included offense of

the conduct alleged in Count One, a count on which the jury acquitted Appellant.

Both parties agree that we should modify the judgments.21         Accordingly, we

sustain Appellant’s ninth and tenth issues. We therefore modify the judgment in

cause number 02-09-00194-CR (trial court cause number 1107358D) currently

indicating ―COUNT TWO‖ to instead state ―COUNT THREE,‖ we modify the

judgment in the same cause currently indicating ―COUNT ONE‖ to instead state

―COUNT TWO,‖ and we delete ―(LESSER INCLUDED OFFENSE)‖ from the

description of ―Offense for which Defendant Convicted:‖ in that judgment.




      21
        See Hughes v. State, 493 S.W.2d 166, 170 (Tex. Crim. App. 1973)
(allowing modification of judgment to show the offense of which the accused was
found guilty).


                                        14
VII. Conclusion

      Having overruled all issues concerning cause number 02-09-00193-CR

(trial court cause number 1107352D), we affirm the trial court’s three judgments

in that cause. Having sustained Appellant’s ninth and tenth issues concerning

cause number 02-09-00194-CR (trial court cause number 1107358D) but having

overruled all other issues, we affirm the trial court’s two judgments in that cause

as modified.




                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 16, 2010




                                        15
