      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-04-00004-CR



                                  Samuel Allen Webb, Appellant

                                                   v.

                                   The State of Texas, Appellee




    FROM THE DISTRICT COURT OF SAN SABA COUNTY, 33RD JUDICIAL DISTRICT
        NO. 5231, HONORABLE GUILFORD L. JONES, III, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Samuel Allen Webb, the campus director of a residential treatment home for

emotionally troubled children, appeals from a conviction by a jury of sexual assault of a child in his

care. Specifically, appellant was convicted of engaging in sexual intercourse with a child on or about

October 20, 1999. See Tex. Pen. Code Ann. § 22.011(a)(1)(A) (West Supp. 2004-05). The jury

assessed his punishment at fifteen years’ imprisonment. In six issues, he challenges the factual

sufficiency of the evidence to support the conviction, the trial court’s denial of a mistrial and motion

for a new trial on the grounds that (i) a juror also served on the grand jury that returned the

indictment against appellant and (ii) the State failed to disclose to appellant the possibility that the

complainant was filing a civil suit against appellant, and that the trial court improperly limited his

cross-examination of the complainant. We affirm the judgment of conviction.
                                   FACTUAL BACKGROUND

                After years of sexual molestation by a stepfather and an otherwise deteriorating family

situation, the complainant, P.L.T., was admitted to a juvenile center and then to the Big Spring State

Hospital where she was treated for behavior that included running away, aggression, self-mutilation,

and suicide attempts. She was then placed at the Cherokee Home for Children, a state-licensed

residential facility for emotionally troubled children affiliated with a religious organization, located

in San Saba County. P.L.T. was fifteen-years-old on May 28, 1999, when she arrived at the home.

At appellant’s trial, P.L.T. testified that the home was the perfect place for her and that she thrived

under the care of her house parents, Gann and David Templeton. Her house parents and counselors

also testified to her progress.

                Appellant and his spouse, Carla Webb, began working as house parents of a cottage

at the home in July 1989. After leaving for a brief time in 1993, they returned in 1994 to serve again

as house parents until appellant was promoted to the position of campus director in March or April

1998. His duties included maintenance and care of the campus, the buildings, and the lawns.

                The trial testimony focused on that of P.L.T., who testified that she encountered

appellant when she first arrived at the home. She recalled that in September 1999 appellant and Mrs.

Webb were serving as relief house parents when he first approached her in an improper manner. She

testified that appellant and his wife were driving the girls home from a football game in a nearby

town late one night. Mrs. Webb was driving and appellant was in the passenger seat; P.L.T. was

seated behind appellant and the other girls were sleeping. In response to P.L.T.’s complaint that her

neck ached, appellant reached back and started rubbing her neck. As he continued to rub her neck,



                                                   2
he slipped his hand inside P.L.T.’s t-shirt and touched her breast. She pulled back against her seat

but said nothing. When they returned to the cottage, she encountered appellant in the laundry room

where she had gone to retrieve some sheets for her bed. He kissed her and, she testified, touched her

inappropriately over her clothing: “He would touch me on my breast and on my hip and between

my legs.” The encounter was brief and appellant told her he was going to come into her bedroom

at night and wake her up.

                P.L.T. testified that she “believe[d] it was that next day” that appellant came into her

bedroom at night, after everyone had gone to bed, and tapped her on the ankle. She followed him

into the living room away from the room she shared with four girls. She could not explain why she

went with him: “He was being real nice to me. He would tell me that I was beautiful” and make

coffee for her. Appellant began touching her as they sat in the living room and the other occupants

of the cottage slept. He then took her to a van outside the cottage where they engaged in sexual

intercourse. They returned to the cottage and she went to bed. The next two nights, P.L.T. recalled

that appellant came into her room, tapped her on the ankle, and they left the cottage, engaging in

sexual intercourse in a maroon truck parked next to the cottage that she thought belonged to

appellant or his father.

                P.L.T. testified to other sexual encounters with appellant, including one in a camper

on the grounds of the home on the day a charitable auction was held at the home and one on or about

October 20 in the gym where appellant was arranging chairs for a gathering. P.L.T. testified, as did

house parent Gann Templeton, that appellant called Mrs. Templeton to send P.L.T. over to the gym

to help him. P.L.T. was hesitant and did not want to go: “I was getting scared. I just—I was



                                                   3
getting—just my nerves were really bothering me then.” Mrs. Templeton told her that he had called

and that she “needed to go over there and help move chairs.” When she arrived, appellant was

upstairs alone. He told her where to hide if someone came into the gym. They then engaged in

sexual intercourse on a chair and P.L.T. returned to her cottage.

                 Meanwhile, appellant began handing P.L.T. notes at church, or sometimes leaving

them under her mattress, and instructing her to discard them. On her birthday, he left her a birthday

card with $40 enclosed under the mattress of her bed. P.L.T. testified that, soon thereafter, appellant

told her that Mrs. Webb had learned of appellant’s encounters with her, and P.L.T. saw that Mrs.

Webb was upset—as was P.L.T. P.L.T. knew something was wrong one morning when Mrs. Webb

was cooking and she threw some eggs out of the pan. P.L.T. started crying and ran outside. Mrs.

Webb followed her, hugged her, and apparently tried to comfort her. Later, Mrs. Webb talked to her

and wanted to make sure she would not tell anyone about appellant. In her presence, appellant

apologized to P.L.T. saying “in front of [Mrs. Webb] that he wasn’t going to do it anymore and that

he was sorry.”

                 Testifying on his own behalf, appellant denied the allegations of the indictment and

P.L.T.’s accusations. He testified that he never had physical contact of any sort with P.L.T. and

denied engaging in any sexual activity with her. He attributed the allegations to P.L.T.’s mental

problems, her sexual experience and background, and animosity among the employees. Appellant

was convicted of a single count of sexual assault of a child.




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                                            ANALYSIS

               On appeal, appellant challenges the factual sufficiency of the evidence to support his

conviction, the presence of a juror who had also served on the grand jury that had indicted appellant,

the failure of the State to disclose evidence, and the trial court’s improper limitation on cross-

examination of the complainant. We first address factual sufficiency.


Factual Sufficiency

               Appellant argues that the evidence is factually insufficient to support his conviction

because no sexual activity occurred, and the evidence contrary to the State’s case is so strong that

there is reasonable doubt. He and his wife both testified and disputed P.L.T.’s accusations. He urges

that the prosecution’s case rests on witnesses who are biased and not credible. Thus, he urges that

the verdict was contrary to the overwhelming weight of the evidence because the defense evidence

greatly outweighed the State’s evidence to the extent that the contrary finding is clearly wrong and

manifestly unjust.

               In a factual sufficiency review, we view all of the evidence in a neutral light, and we

will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and

manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable

doubt could not have been met. See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App.

2004).   We review the fact finder’s weighing of the evidence and may disagree with its

determination. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). But a factual

sufficiency analysis can consider credibility only on those few matters bearing on credibility that can

be fully determined from a cold appellate record. See Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim.

                                                  5
App. 2000). A factual sufficiency review must employ appropriate deference to the fact finder’s role

as the sole judge of the weight and credibility to be given to witness testimony. Id. at 7.

               The case revolves around the testimony of P.L.T.—who testified that the sexual

assaults occurred over a period of time, including in October 1999, the date set forth in the

indictment—and of appellant, who denied any sexual contact. P.L.T. testified extensively on direct

and cross about her troubled background and the fact that she first denied that “anything had

happened” to an investigator from Child Protective Services. Her admission assessment stated that

she had abused drugs and was sexually promiscuous and manipulative. Appellant suggests that

P.L.T. had a motive to lie because she was facing disciplinary action at school, evidently in the form

of corporal punishment. Appellant also questions the relationship between P.L.T. and house parent

Robin Brack, the person to whom P.L.T. made the first outcry on April 3, 2000. Brack reported the

outcry to his supervisor, Terry Moore, whose credibility appellant also challenged at trial. Brack

testified that he had two supervisors: Moore and appellant. Moore was his supervisor with respect

to Brack’s counseling duties, including child safety, child protection, therapy group sessions, and

house parenting. Appellant supervised Brack’s duties regarding taking care of the physical needs

of the campus and children, including mowing the lawns and feeding the children. As to his

relationship with appellant, Brack testified: “We didn’t have a relationship. He was my supervisor

and that was it.” On cross-examination, Brack acknowledged that, after he had left the home, he had

sent an inappropriate e-mail to one of the young women at the home. The e-mail was admitted into

evidence. Brack also acknowledged that appellant had “written him up” in a disciplinary report on




                                                  6
one occasion. Brack testified that he and his wife resigned as house parents in January 2000 and left

at the end of the school year.

               That friction existed among the administrators at the home was evident throughout

the testimony at trial. Terry Moore became employed at the home in August 1997. As a licensed

child care administrator, he was qualified to serve as an administrator at a residential facility. He

began as director of social services with duties that included the screening and selection of children

for the home. He performed admission assessments and developed service plans for each child’s

treatment. Moore’s wife, Linda, also worked at the home as a social worker who counseled the

children.

               Shortly after Moore arrived at the home, the position of executive director became

available, and, although Moore applied for the position, Danny Duggan was hired. Moore was

promoted to program and clinical administrator, and appellant became campus manager, initially

reporting to Moore. In January 1999, due to apparent strain between appellant and Moore, Duggan

altered the line of reporting so that both appellant and Moore reported directly to him. When P.L.T.

made the initial outcry to Brack, he reported it to Moore because Duggan was on vacation and away

from the campus. Moore then reported it to the state authorities; the relationship between Moore and

Duggan became strained and Moore resigned his position at the home. Moore testified that the strain

resulted “[b]ecause I had learned that Mr. Duggan had engaged in some things that were

inappropriate in handling matters of the sexual abuse outcry.” Appellant and Moore both ran for

election for a position on the local school board, and appellant was elected. Moore acknowledged

that appellant won the election but did not believe that was the source of their friction.



                                                  7
                Appellant thus argues that the State’s witnesses gave contradictory testimony, that

they were not credible, and that they had motives to lie about the events in question. But there was

corroborating testimony. Gann Templeton testified that appellant called over to the house for P.L.T.

to come to the gym to help him set up the chairs for an event, and that P.L.T. was very reluctant to

go and then was gone too long. She also testified that appellant would ask her which bed belonged

to P.L.T. when he inspected the cottage. Both Mrs. Templeton and P.L.T. testified to a gift of a

shawl from appellant’s wife prior to P.L.T.’s outcry. The State introduced into evidence a birthday

card P.L.T. had taped to her wall signed “Love—me.” P.L.T. testified that she had received the card

from appellant, and other known handwriting of appellant was introduced for the jury to view.

                Child Protective Services investigator Steve Morgan testified concerning his

interview of P.L.T. and the circumstances of the written statements given by P.L.T., the first denying

that anything improper had occurred. She wrote: “There’s nothing happening between me and a

staff member. I don’t know why anyone would say this. I feel that it is very dumb. I feel like maybe

someone is trying to get me into trouble.” Her second written statement was lengthy and detailed

the sexual activity. Dr. Matthew Ferrera, a psychologist, testified that children who are sexually

abused may go for long periods of time before they make an outcry. He described how they learn

to cope, how that behavior manifests itself, and that sexually abused children are more likely to be

abused again.

                The motives and the credibility of the witnesses were fully ventilated throughout the

trial. Because the jury is the sole judge of the credibility of witnesses and the weight to be given

their testimony, we defer to its decision. When faced with starkly conflicting testimony from P.L.T.



                                                  8
and appellant, along with numerous other witnesses who testified for the State as well as the defense,

the jury chose to believe the State’s version of events. After viewing all of the evidence in a neutral

light, we find that the evidence supporting the verdict is strong enough to support the finding of guilt

beyond a reasonable doubt, and that the contrary evidence is not strong enough to prevent the

reasonable-doubt standard from being met. Therefore, we conclude that a rational jury could have

found appellant guilty beyond a reasonable doubt and that the evidence was factually sufficient to

support the conviction. We overrule appellant’s first issue.


Prior Grand Jury Service by Juror

                In issues two and three, appellant complains that the trial court erred by overruling

his motions for a mistrial and for a new trial based upon the presence of a juror, Sara H., who had

also served on the grand jury that had indicted appellant.

                The granting or denying of a motion for new trial lies within the discretion of the trial

court. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); State v. Gonzalez, 855 S.W.2d 692,

696 (Tex. Crim. App. 1993); see also Ramon v. State, 159 S.W.3d 927, 928 (Tex. Crim. App. 2005)

(standard regarding motion for mistrial). An appellate court does not substitute its judgment for that

of the trial court, but rather decides whether the trial court’s decision was arbitrary or unreasonable.

Gonzalez, 855 S.W.2d at 696 n.4.

                The facts relating to the juror are undisputed. Appellant was indicted on November

1, 2001. Appellant’s trial began on August 25, 2003. During voir dire, the prosecutor asked the

jurors whether they had discussed the case with anyone, and three jurors raised their hands. Defense

counsel then asked during his presentation, “Is there anybody else on the entire panel who has heard

                                                   9
anyone discuss this case or someone say they thought they knew what the facts of the case might

be?” No one responded. Appellant’s counsel asked no individual questions of veniremember Sara

H. during his voir dire. Several veniremembers were excused for cause, the attorneys exercised their

peremptory challenges, and the jury was selected. Sara H. was one of the twelve jurors who served

on the jury. After the verdict but prior to sentencing, appellant discovered that she had served on the

grand jury that indicted appellant.

               At a hearing on September 22, 2003, on appellant’s motions for mistrial and for a new

trial, the court heard evidence and argument concerning the juror who had also served on the grand

jury. Sara H. testified that she served on the grand jury that indicted appellant, but could not recall

whether evidence had been presented or which assistant district attorney had presented the case:

“[A]ll I remember was the name and the charges that were filed. I don’t remember seeing any

paperwork.” She could not recall how many cases were presented to the grand jury and was not

asked the duration or term of the grand jury’s work. The following testimony then occurred in

response to questions posed by defense counsel:


       Q. I take it, then, you heard some evidence for these allegations against Samuel
          Webb?

       A. Well, I heard what his charges were and where it happened. That’s all I can
          remember.

       Q. When you—do you remember what was called the voir dire examination that we
          had here Monday, August 25th, 2003? The lawyers stood up and talked to the
          jury, asked the jury, prospective jurors, questions?

       A. Yes.




                                                  10
         Q. Do you remember being asked whether or not you ever heard the facts of the
            case discussed in your presence or whether or not anyone had ever discussed the
            purported facts of the case in your presence?

         A. I don’t remember.

         Q. You don’t remember being asked that?

         A. No.

         Q. When you got back to deliberate your verdict in this case, did you tell anyone in
            the jury room that you had served on the grand jury that had returned the
            indictment in the case against Samuel Allen Webb?

         A. No, I didn’t.


                The Texas Code of Criminal Procedure makes it a ground of challenge for cause that

a panelist “served on the grand jury which found the indictment.” Tex. Code Crim. Proc. Ann. art.

35.16(a)(7) (West 1989). It is error for a trial court to overrule a challenge for cause to a panelist

who was a member of the grand jury that returned the indictment being tried. Wolfe v. State, 178

S.W.2d 274, 279 (Tex. Crim. App. 1944); Mitchell v. State, 27 S.W.2d 800, 800-01 (Tex. Crim.

App. 1930). But a claim that a juror served on the indicting grand jury is a ground for challenge for

cause, not an absolute disqualification. Tex. Code Crim. Proc. Ann. art. 35.16(a) (West 1989); see,

e.g., Freeman v. State, No. 11-03-00173-CR, 2005 Tex. App. LEXIS 4030, at *4 (Tex.

App.—Eastland, May 26, 2005, no pet.); Moya v. State, 691 S.W.2d 63, 65 (Tex. App.—San

Antonio 1985, no pet.) (service on grand jury that returned indictment is ground of challenge that

may be waived pursuant to article 35.16(a)); see also Self v. State, 47 S.W. 26, 28 (Tex. Crim. App.

1898).




                                                 11
                The failure to question a juror about whether the juror was a member of the grand jury

that returned the indictment constitutes a waiver of the right to thereafter complain that the juror was

disqualified on that basis. Mitchell, 27 S.W.2d at 800. In Self v. State, the court of criminal appeals

held that


        questioning of the juror . . . [generally] as to whether or not he had formed an
        opinion in the case, did not recall to him the fact that he had sat upon the grand jury
        which found the bill of indictment. . . . [I]t was not diligence on the part of
        appellant to rest simply upon questioning the witness as to the formation of an
        opinion; but he should have covered the other grounds named in the statute, if he
        desired to avail himself of them, before he could be held to have used due diligence
        as to the particular cause for challenge [the juror’s prior service on the grand jury].


47 S.W. at 28. Therefore, the claim is waived unless the defendant specifically questioned the juror

on potential grounds for disqualification and exercised the challenge in a timely manner. See Tex.

Code Crim. Proc. Ann. art. 35.16(a); see also 43 George E. Dix & Robert O. Dawson, Texas

Practice: Criminal Practice and Procedure § 35.65 (2001 & Supp. 2004).

                Appellant failed to diligently press the statutory inquiries as to the grounds for

challenge. He asked only a general question as to whether the juror had heard anyone discuss the

case or say they knew anything about the facts. At no time did counsel inquire whether anyone had

served on a grand jury—or the grand jury at issue—nor did he question Sara H. individually about

any matter. The general question posed is insufficient to preserve a challenge for cause. See Self,

47 S.W. at 28. There is no question that the juror should have been excused for her prior grand jury

service had she been timely challenged. But she was not queried or challenged. And appellant has

not otherwise shown that Sara H. was biased or prejudiced or was not an impartial juror.



                                                  12
                   This case is similar to Armstrong v. State, 897 S.W.2d 361, 363 (Tex. Crim. App.

1995). In Armstrong, the issue was whether a prospective juror’s failure to reveal that she and the

prosecutor were close friends constituted juror misconduct in that she failed to disclose the

information. Id. The court held that it did not because no one had asked the panelists if they knew

the prosecutor. Id. at 364. Likewise, no one asked Sara H. or any of the jurors if they had previously

served on a grand jury, or the one that indicted appellant. We overrule appellant’s second and third

issues.


Disclosure of Possibility of Civil Lawsuit

                   In his fourth and fifth issues, appellant contends that the trial court erred in denying

his motions for mistrial and for a new trial as a result of the State’s failure to disclose that P.L.T. was

filing a civil damage suit against him. He contends that the failure to disclose this information

prevented him from cross-examining P.L.T. about her financial stake in the trial, denying appellant

his right to counsel as guaranteed by the sixth and fourteenth amendments to the United States

Constitution and article I, section 10 of the Texas Constitution.1

                   Following the verdict of guilty, appellant was served with a civil lawsuit in which

P.L.T. was named as plaintiff,2 and appellant, Duggan, and the Cherokee Home were named as

defendants. At a hearing on the motions for mistrial and for new trial, the prosecutor and P.L.T.’s



          1
           Appellant does not distinguish between state and federal constitutional claims but states
that his rights under the Texas Constitution do not exceed or differ from any provided him under the
United States Constitution. Therefore, relying on the language in Arnold v. State, 873 S.W.2d 27,
33 n.4 (Tex. Crim. App. 1993), we decline to address any state constitutional issue.
          2
              The suit was filed on May 30, 2003.

                                                     13
civil attorney both testified. The prosecutor testified that, shortly after the verdict was returned, she

informed appellant’s counsel that P.L.T.’s counsel had previously told her he wanted to file a civil

suit, and that she had urged him not to file it. The prosecutor also testified that she did not know the

lawsuit had been filed and assumed that it had not been filed. P.L.T.’s counsel testified, in response

to defense counsel’s question “I believe you were present during the trial of this case . . .,” that he

had attended the trial. P.L.T.’s counsel also testified that the prosecutor urged him not to file a

lawsuit, at least not in San Saba, because the prosecutor did not want it to interfere with the criminal

trial. He testified that he had appellant served after the trial so as not “to disrupt the proceedings”

or “distract from the evidence.” The trial court overruled appellant’s motions for mistrial and for

a new trial.

                The Sixth Amendment protects the defendant’s right not only to confront the

witnesses against him, but to cross-examine them as well. Davis v. Alaska, 415 U.S. 308, 316

(1974). “[T]he exposure of a witness’ motivation in testifying is a proper and important function

of the constitutionally protected right of cross-examination.” Id. The defendant is entitled to great

latitude to show a witness’s bias or motive to falsify his testimony. Hodge v. State, 631 S.W.2d 754,

758 (Tex. Crim. App. 1982). In Carroll v. State, the court of criminal appeals stated


        Evidence to show bias or interest of a witness in a cause covers a wide range and the
        field of external circumstances from which probable bias or interest may be inferred
        is infinite. The rule encompasses all facts and circumstances, which when tested by
        human experience, tend to show that a witness may shade his testimony for the
        purpose of helping to establish one side of the cause only.




                                                       14
916 S.W.2d 494, 497-98 (Tex. Crim. App. 1996). Generally, a defendant is permitted to show that

the complaining witness has brought a civil suit for damages based on the same occurrence for which

the defendant is being prosecuted. Hoyos v. State, 982 S.W.2d 419, 421 (Tex. Crim. App. 1998).

                Appellant does not assert that he was precluded from inquiring into P.L.T.’s motive

or bias or even the subject of a possible civil lawsuit; rather he contends that he was “prevented”

from inquiring because the prosecution knew the lawsuit would “possibly be filed but did not inform

the defense.” He contends that the trial court abused its discretion in denying the motion for mistrial.

                A prosecutor has an affirmative duty to disclose all material, exculpatory evidence

to the defense. Lagrone v. State, 942 S.W.2d 602, 615 (Tex. Crim. App. 1997). A prosecutor

violates the due process clause of the fourteenth amendment of the Constitution when he or she fails

to disclose material evidence that is favorable to the accused. Thomas v. State, 841 S.W.2d 399, 404

(Tex. Crim. App. 1992).        Favorable evidence is any evidence, including exculpatory and

impeachment evidence, that, if disclosed and used effectively, creates a reasonable probability that

the outcome of the proceeding would have been different. Id. Evidence is material if it creates a

probability sufficient to undermine the confidence in the outcome of the proceeding. Id. Thus, a due

process violation has occurred if a prosecutor (i) failed to disclose evidence, (ii) favorable to the

accused, (iii) which creates a probability of a different outcome. Id. A reviewing court determines

materiality by examining the alleged error in the context of the entire record and in the context of

the overall strength of the State’s case. Id. at 404-05. The reviewing court may consider any adverse

effect that the nondisclosure might have had on the preparation or presentation of the defendant’s




                                                  15
case in light of the totality of the circumstances and with an awareness of the difficulty of

reconstructing the course of the defense and the trial in a post-trial proceeding. Id. at 405.

                The prosecutor testified at the hearing on the motions that she did not know the

lawsuit had been filed. There is no evidence otherwise. The record reflects that the prosecutor did

not deliberately withhold impeachment evidence from appellant. In the absence of other evidence,

then, the information about which appellant complains was never in the possession of the State.

Even if we assume that this was evidence in the possession of the State that the State was required

to turn over as favorable to the accused, appellant has not shown that the outcome of the proceedings

would have been different had he known about P.L.T.’s desire to file a civil suit. Given P.L.T.’s

conflicting written statements and her treatment history and background, it is difficult to imagine a

witness with more abundant impeachment material. Thus, the evidence was cumulative and, in light

of the evidence as a whole, it is not evidence sufficiently critical that would create a considerable

likelihood the outcome of the trial would be different. See Etheridge v. State, 903 S.W.2d 1, 20

(Tex. Crim. App. 1994) (if witness acknowledges impeaching facts, nondisclosed information

bearing on those facts not “material”). We overrule appellant’s fourth and fifth issues.


Limitation on Cross-Examination

                In his sixth issue, appellant asserts that he was foreclosed from cross-examining

P.L.T. “regarding her alleged lack of interest in the prosecution of the case.” Because P.L.T. failed

to appear at a previously set trial date, appellant urged that it was “relevant she was not interested

in seeing this case prosecuted” and that she did not stay in contact with the district attorney. The trial

court sustained the State’s objection to the admission of that testimony. Appellant then made a bill

                                                   16
of exception concerning P.L.T.’s “lack of interest in the trial of these allegations in January, 2001.”

P.L.T. testified that she was living with her mother when she turned seventeen years old on October

15, 2000, and that her mother kicked her out of the house. She lived for a short time in Wink,

Kermit, and Odessa, and then moved to Arizona in December 2001. She advised the district

attorney’s office of her address once she arrived in Odessa.

               We review a trial court’s decision to admit or exclude evidence for abuse of

discretion. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996). Where the trial court’s

evidentiary ruling is within the “zone of reasonable disagreement,” there is no abuse of discretion

and we will uphold its ruling. Id. This case is the opposite of Saglimbeni v. State, 100 S.W.3d 429

(Tex. App.—San Antonio 2002, pet. ref’d), which is cited by appellant. In that case, the San

Antonio Court of Appeals reversed a conviction for indecency with a child where the trial court

limited cross-examination allowing the State to give a false impression that the victim’s emotional

problems resulted only from acts of the appellant. Id. at 436. Here, P.L.T.’s mental history and

family background were the subject of extensive testimony. Both written statements—one denying

any sexual activity and the other describing a series of sexual overtures and acts by appellant—were

introduced into evidence and were the subject of cross-examination. She was cross-examined about

discipline problems at school, including about a letter of discipline she received the very day that she

made the outcry to Brack. The prosecutor invited the jury to judge P.L.T.’s credibility: “And you

can judge her level of manipulative behavior.”

               When asked by the trial court of the relevance of the evidence, counsel responded that

it was relevant that she did not stay in contact with the district attorney and that she was evidently



                                                  17
not “interested” in the prosecution of the case. The trial court properly concluded that her “level of

interest” was immaterial. The trial court did not abuse its discretion in excluding the evidence.

Appellant was allowed extensive cross-examination of P.L.T., and the jury was allowed the

opportunity to fully assess P.L.T.’s credibility. Appellant does not argue that the limitation left the

jury with a false impression as in Saglimbeni. We overrule appellant’s sixth issue.

               Having overruled appellant’s issues, we affirm the judgment of conviction.




                                               __________________________________________

                                               Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: August 4, 2005

Do Not Publish




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