                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS
 WILLIAM SAMMY CASEY, JR.,                               §
                                                                            No. 08-10-00015-CR
                      Appellant,                         §
                                                                               Appeal from the
 v.                                                      §
                                                                             221st District Court
 THE STATE OF TEXAS,                                     §
                                                                       of Montgomery County, Texas
                      Appellee.                          §
                                                                           (TC # 09-06-05444-CR)
                                                         §

                                                 OPINION

         A Montgomery County jury found appellant, William Sammy Casey, Jr., guilty of one felony

count of continuous sexual abuse of a child and three felony counts of aggravated sexual assault of

a child.1 See TEX . PENAL CODE ANN . §§ 21.02 & 22.021 (West 2011). The trial court assessed

Casey’s punishment, enhanced by four prior felony convictions, at imprisonment for forty years on

each count, with the four sentences to run concurrently. In his brief to this Court, Casey brings five

issues.2 Finding no reversible error, we overrule Casey’s issues and affirm the judgments of the trial

court.

                                                 FIRST ISSUE

         In his first issue, Casey argues that Texas Penal Code section 21.02, which criminalizes

continuous sexual abuse of a child and under which he was convicted, violates the jury-unanimity



         1
            The record reflects that the Texas Supreme Court transferred this case from the Ninth Court of Appeals to
this Court. See T EX . G O V ’T C O D E A N N . § 73.001 (W est 2005).

         2
            Casey’s first, third, fourth, and fifth issues each present multiple separable legal questions and are,
therefore, arguably multifarious and in violation of our briefing rules. See G. Dix & J. Schmolesky, Texas Practice
Series: Criminal Practice and Procedure §§ 55:105-55:107 (3rd ed. 2011). Nevertheless, in the interest of justice,
we consider all of Casey’s issues.
guarantee of Article V, § 13, of the Texas Constitution and the due-process guarantee of the

Fourteenth Amendment.3,4 He argues that section 21.02 violates those constitutional guarantees

because it allows jurors to convict even if they do not agree unanimously on which specific acts of

sexual abuse the defendant committed. Casey argues further that, under section 21.02, the specific

acts of sexual abuse the defendant committed are “factual elements” of the offense that, under the

constitutional provisions in question, must be found by the jury unanimously. Casey’s argument

continues:

         [T]here is no denying that the statute’s removal of the requirement of jury unanimity
         as to the predicate offenses . . . creates risk of serious unfairness to [a] defendant.
         . . . First, there is the risk that absence of a requirement that the jury agree on the
         particular acts committed will cover up disagreement among jurors about just what
         the defendant did or did not do. . . . The second risk of unfairness is that by not
         requiring the jurors to focus upon specific factual details, the jury may simply
         conclude that ‘where there is smoke there is fire.’ (Citations and some punctuation
         omitted.)

         Although Casey does not explicitly challenge any of the trial court’s rulings with respect to

the validity of section 21.02, we think he is implicitly challenging the trial court’s denial of his

pretrial motion to quash Count I in the indictment, which charged him under section 21.02. We

think that for two reasons. First, appealable error ordinarily occurs only when the trial court makes

a mistake. Hawkins v. State, 135 S.W.3d 72, 76 (Tex.Crim.App. 2004). Second, before a statute

may be challenged on appeal, it must be challenged in the trial court. Karenev v. State, 281 S.W.3d

428, 432-34 (Tex.Crim.App. 2009).


         3
          Casey also argues that section 21.02 violates the due-course-of-law guarantee of Article I, § 19, of the
Texas Constitution, but he did not make that argument below, and we do not consider it. See T EX . R. A PP . P. 33.1.

         4
             Casey’s argument, as we understand it, is that the statute is unconstitutional on its face. See Scott v. State,
322 S.W .3d 662, 665 n.1 (Tex.Crim.App. 2010) (explaining the difference between facial and as-applied challenges
to statutes).

                                                             2
         We turn first to Casey’s argument that the statute violates the jury-unanimity guarantee of

Article V, § 13 of the Texas Constitution. The constitutionality of a statute is a question of law, and

we review trial court rulings on questions of law de novo. Esparza v. State, 282 S.W.3d 913, 921

(Tex.Crim.App. 2009).

         Article V, § 13, requires that jurors, before they may convict in a felony case, must agree

unanimously on each element of the offense.                      Jefferson v. State, 189 S.W.2d 305, 311

(Tex.Crim.App. 2006). But Article V, § 13, does not require jurors to agree unanimously on the

manner and means by which the elements were accomplished.5 Id. Given this settled law, our task

is to determine whether, under section 21.02, the specific acts of sexual abuse the defendant

committed are true elements of the offense or whether they are merely the manner and means by

which one of the elements is accomplished. If they are the former, then jury unanimity is required;

if they are the latter, then jury unanimity is not required.

         Section 21.02 provides, in relevant part:

         (b) A person commits an offense if:
                 (1) during a period that is 30 or more days in duration, the person commits
                 two or more acts of sexual abuse, regardless of whether the acts of sexual
                 abuse are committed against one or more victims; and
                 (2) at the time of the commission of each of the acts of sexual abuse, the actor
                 is 17 years of age or older and the victim is a child younger than 14 years of
                 age.
         (c) For purposes of this section, “act of sexual abuse” means any act that is a
         violation of one or more of the following penal laws:
                 (1) aggravated kidnapping under Section 20.04(a)(4), if the actor committed
                 the offense with the intent to violate or abuse the victim sexually;


         5
            “‘[W ]hile jury unanimity is required on the essential elements of the offense, when the statute in question
establishes different modes or means by which the offense may be committed, unanimity is generally not required on
the alternate modes or means of commission.’” Jefferson v. State, 189 S.W .3d 305, 311 (Tex.Crim.App. 2006)
(quoting State v. Johnson, 627 N.W .2d 455, 459-60 (W is. 2001)). See G. Dix & J. Schmolesky, Texas Practice
Series: Criminal Practice and Procedure § 43.21 at 890 (3rd ed. 2011).

                                                           3
                (2) indecency with a child under Section 21.11(a)(1), if the actor committed
                the offense in a manner other than by touching, including touching through
                clothing, the breast of a child;
                (3) sexual assault under Section 22.011;
                (4) aggravated sexual assault under Section 22.021;
                (5) burglary under Section 30.02, if the offense is punishable under
                Subsection (d) of that section and the actor committed the offense with the
                intent to commit an offense listed in Subdivisions (1)-(4); and
                (6) sexual performance by a child under Section 43.25.
       (d) If a jury is the trier of fact, members of the jury are not required to agree
       unanimously on which specific acts of sexual abuse were committed by the defendant
       or the exact date when those acts were committed. The jury must agree unanimously
       that the defendant, during a period that is 30 or more days in duration, committed two
       or more acts of sexual abuse.

       Under the plain language of section 21.02(b), the offense of continuous sexual abuse of a

child has five elements: (1) a person (2) who is seventeen or older (3) commits a series of two or

more acts of sexual abuse (4) during a period of thirty or more days, and (5) each time the victim is

younger than fourteen. Under Article V, § 13, jurors, before they may convict under section

21.02(b), must agree unanimously on each of these five elements, but they need not agree

unanimously on which specific acts of sexual abuse the defendant committed, because those acts are

merely the manner and means by which the “series” element was accomplished. Reckart v. State,

323 S.W.3d 588, 600-01 (Tex.App.–Corpus Christi 2010, pet. ref’d); Render v. State, 316 S.W.3d

846, 857-58 (Tex.App.–Dallas 2010, pet. ref’d); C. Jones, “Guilty of What? Unanimous Verdicts in

Texas: Developing a Test to Distinguish Between Acts Constituting One Offense and Acts

Constituting Separate Offenses,” 40 Tex. Tech L. Rev. 391, 414 (2008).

       We turn next to Casey’s argument that section 21.02 violates the due-process guarantee of

the Fourteenth Amendment. The Legislature, consistent with the due-process guarantee, may define

a criminal offense in a way that permits jurors to convict while disagreeing about the manner and



                                                 4
means of commission of that offense, provided the alternate manners and means of commission are

basically equivalent morally and conceptually. White v. State, 208 S.W.3d 467, 469 (Tex.Crim.App.

2006); Jefferson, 189 S.W.3d at 313-14. In section 21.02, the alternate manners and means of

commission of the offense, i.e., the alternate acts of sexual abuse listed in section 21.02(d), all

involve actual or intended sexual abuse of a child, all are felonies, all are morally equivalent, and

all are conceptually similar. Given all that, section 21.02 does not violate due process simply

because it permits jurors to convict while disagreeing on the manner and means of commission of

the offense. Jacobsen v. State, 325 S.W.3d 733, 739 (Tex.App.–Austin 2010, no pet.).

        In view of the foregoing, we conclude that the trial court did not err in denying Casey’s

pretrial motion to quash Count I in the indictment, and we overrule Casey’s first issue.

                                          SECOND ISSUE

        In his second issue, Casey argues that the trial court erred in denying his proposed jury

instruction to the effect the jury was not authorized to convict him under section 21.02 unless it

agreed unanimously on which specific acts of sexual abuse he committed and when he committed

them. Casey argues further that the trial court’s denial of his proposed jury instruction had the effect

of denying his state constitutional right to a unanimous jury verdict.

        The record reflects that the trial court instructed the jury in accordance with the law set out

in section 21.02, and, as we explained above, the law set out in section 21.02 is consistent with

Casey’s state constitutional right to a unanimous jury verdict. Consequently, we discern no error on

the part of the trial court in its denial of Casey’s proposed jury instruction. We overrule Casey’s

second issue.

                                           THIRD ISSUE


                                                   5
        In his third issue, Casey argues that the trial court erred in denying his pretrial motion to sever

Count VI in the indictment because the offense alleged in Count VI and the offenses alleged in the

other counts were “so far apart in time [that] it cannot be said that they constitute[d] part of the ‘same

criminal episode.’” He also argues that the trial court erred in denying his motion to sever because

he was unfairly prejudiced by the joinder of Count VI with the other counts.

        We turn first to Casey’s argument that the trial court erred in denying his motion to sever

Count VI because the offense alleged in that count and the offenses alleged in the other counts were

not part of the same criminal episode. As originally presented by the grand jury, the indictment

contained six counts.6 Count I alleged the continuous sexual abuse of G.H., a child younger than

fourteen, from September 1, 2007, to March 23, 2008. Count II alleged the aggravated sexual assault

of G.H. on or about June 15, 2003. Count III alleged indecency with a child by exposure, with G.H.

as the victim, on or about June 15, 2003. Count IV alleged indecency with a child by contact, with

G.H. as the victim, on or about June 15, 2003. Count V alleged the aggravated sexual assault of

G.H. on or about June 15, 2004. And Count VI alleged the aggravated sexual assault of P.L., a child

younger than fourteen, on or about June 15, 2006.

        The record reflects that the trial court held a pretrial hearing on Casey’s motion to sever

Count VI. At that hearing, Casey argued that, given the dates of the various alleged offenses, “it

seem[ed] a real stretch” that the offenses were all part of the same criminal episode. The State

responded as follows:

        The State: Judge, the statute specifically provides that the Court may try [the alleged
        offenses] together if they arise out of the same criminal episode. The facts are so
        intertwined here. What we expect the evidence to show is that beginning sometime


       6
           The State abandoned Counts III and IV after both sides closed at the guilt stage.

                                                          6
         around 2002, 2003, Mr. Casey began abusing [G.H.], who is our primary victim. The
         reindictment that will – I’m – the reason I selected September 1, 2007 for Count I is
         that that was the date that the continuous sexual abuse statute went into effect. We
         anticipate the evidence will show that this was an on-going thing starting in 2002 and
         going on through March, April of 2008, that it started when [G.H] was a very young
         child and continued periodically through the years.
                 [P.L.] went to elementary school with our primary victim [G.H.]. We
         anticipate the evidence will show that [G.H.] and [P.L.] were at the defendant’s home
         and the defendant subjected [P.L.] to a similar type of treatment. It was a one-time
         deal, but it was similar types of treatment including the use of a baby oil product as
         a lubricant for his hands and for his personal area. . . . We’ve selected – we’ve
         attempted to select milestone dates, but what happened is he victimizes a second
         victim in the course of an on-going victimization of the primary victim. . . . These
         are clearly part of the same criminal episode because they are repeated commissions
         of the same or similar crimes.

         Texas Penal Code section 3.02(a) provides that “[a] defendant may be prosecuted in a single

criminal action for all offenses arising out of the same criminal episode.” TEX . PENAL CODE ANN .

§ 3.02(a) (West 2011). Texas Penal Code section 3.01 provides in relevant part that “‘criminal

episode’ means the commission of two or more offenses, regardless of whether the harm is directed

toward or inflicted upon more than one person . . . [if] the offenses are the repeated commission of

the same or similar offenses.” TEX . PENAL CODE ANN . § 3.01 (West 2011). On this record, the trial

court could have reasonably concluded that all the offenses alleged in the indictment were part of

the same criminal episode because they were the repeated commission of the same or similar

offenses.7 Section 3.01 does not require that all the offenses arising out of the same criminal episode

occur within any particular time frame.

         We turn next to Casey’s argument that the trial court erred in denying his motion to sever



         7
            A trial court ruling must be upheld on appeal if that ruling is supported by the record and is correct under
any theory of law applicable to the case. State v. White, 306 S.W .3d 753, 757 n.10 (Tex.Crim.App. 2010). Also, we
ordinarily review trial court rulings in light of the information and argument before the trial court at the time it ruled.
See G. Dix & J. Schmolesky, Texas Practice Series: Criminal Practice and Procedure § 56:134 (3rd ed. 2011).

                                                             7
Count VI because the joinder of that count with the other counts unfairly prejudiced him. The record

reflects that, at the hearing on his motion to sever, Casey’s unfair-prejudice argument proceeded as

follows:

       Defense Counsel: Your Honor . . . we believe the defendant would be unfairly
       prejudiced because he would be tried as a criminal generally instead of relating to
       either one accusation or the other. If the State can just throw in another case to try
       to prove this case, then he’s being tried as a criminal generally. Again, there’s only
       one allegation on [P.L.]. They have five counts on [G.H.], and one of them is of
       continuous sexual abuse. He’s not accused of continuous sexual abuse of [P.L.].
       He’s accused of one type of offense – well, they are doing it frontwards and
       backwards in Counts I and II and only one offense and only one date for [P.L.]. It’s
       not alleged that he’s continuously abused her over a period of time. And, again, it’s
       separated quite a bit in time from the allegations they’ve made on [G.H.] on both
       ends. June the 15th of 2006. The closest going further back is June – June the 15th,
       2004 for [G.H.] and going forward, probably March the 23rd of 2008 or close to that
       time. So, it’s a year and a half on this end. Two years on the other end.

       In every case in which multiple felony counts are joined for trial, the defendant automatically

faces potential prejudice of two closely-related types: first, the jury may convict him of some of the

crimes alleged not because he is guilty of those crimes but because he is guilty of the other crimes

and is therefore, in the eyes of the jury, a “bad person” who deserves to be punished; and second, the

jury may infer that because he committed some of the alleged crimes, he probably committed all of

them. Llamas v. State, 12 S.W.3d 469, 471-72 (Tex.Crim.App. 2000). For that reason, a defendant,

in the usual case of joinder, has an absolute right to severance. TEX . PENAL CODE ANN . § 3.04(a)

(West 2011). But, in a case involving multiple felony counts of alleged sex offenses against

children, the Legislature has balanced the competing interests and has determined that the defendant

is entitled to a severance only if he can show “unfair” prejudice because of joinder. TEX . PENAL




                                                  8
CODE ANN . § 3.04(c) (West 2011).8 That is to say, the defendant must show some type of prejudice

beyond that which a defendant would automatically face in any case in which felony counts are

joined.

          When Casey argued to the trial court that the joinder of Count VI with the other counts would

cause him to be “tried as a criminal generally,” he was claiming nothing more than the type of

prejudice that a defendant would automatically face in any case in which felony counts are joined.

Therefore, on this record, the trial court could have reasonably concluded that Casey had not shown

“unfair” prejudice within the meaning of section 3.04(c).

          We overrule Casey’s third issue.

                                                 FOURTH ISSUE

          In his fourth issue, Casey argues that the trial court erred in denying his second amended

motion in arrest of judgment and for a new trial because Juror E.P. “was not a qualified voter in

Montgomery County, and his untruthfulness amounted to corrupt conduct.” With respect to this

issue, the record reflects the following:

          During the jury-selection process, E.P. wrote on his juror questionnaire that his home address

was 18573 Pickering Road in Conroe and that his mailing address was P. O. Box 1041 in New

Caney. He also wrote that Montgomery County was his county of residence. E.P. was later selected

to serve, and did serve, on the jury.

          On October 28, 2009, after the jury returned its verdict on guilt but before the trial assessed



          8
            The legislative history of section 3.04(c) reveals that the subsection was intended to “restrict defendants’
right to multiple trials for serious sex offenses committed against children so that child victims cannot be forced to
undergo multiple trials.” House Research Organization, Texas House of Representatives, 75th Legislature, Bill
Analysis of S.B. 381, p. 4 (May 20, 1997).

                                                            9
punishment, Casey filed a motion in arrest of judgment in which he argued that Juror E.P. did not

actually reside at the Pickering Road address and was possibly not a resident of Montgomery County.

On November 4, 2009, the trial court held an evidentiary hearing on Casey’s motion. At that

hearing, E.P. testified as follows:

         Q: What did you show as your home address on the juror information sheet, [E.P.]?

         A: It was the physical address I show, Pickering Road, Conroe, Texas.

         Q: And was that your actual address?

         A: No. I’m living in an R.V. park in Splendora.9

                                                       .   .    .

         The Court: Okay. What was your relationship to the address you put on that form?

         A: It was my daddy-in-law’s house.

                                                       .   .    .

         The Court: How come you chose that address? What was your thinking?

         A: Well, I lived there for a while.

         The Court: Okay.

         A: He was my best friend so –

         The Court: Okay.

         A: But, since then, I moved – I’ve lived in several R.V. parks, all been in
         Montgomery County.

                                                       .   .    .

         Q: And are you registered to vote?


        9
           W e take judicial notice that an “R.V. park” is the common term for a facility, typically privately owned
and operated, in which recreational vehicles may be parked and occupied.

                                                           10
A: Yes, ma’am.

The Court: And where do you vote? What county?

A: Montgomery County.

                                      .   .    .

Q: And for purposes of registering to vote, you were still using 18573 Pickering Road
in Conroe as your voting address?

A: Yes, as a physical address.

                                      .   .    .

Q: Why did you not use your correct address for voter registration, sir?

A: Because I already had my driver’s license with that address, and that’s what I
listed it at. I mean, I can’t use an R.V. trailer for a permanent residence.

                                      .   .    .

Q: But you don’t live [at the Pickering Road address], sir.

A: I live in Montgomery County at Countrywide R.V. Park.

                                      .   .    .

Q: Okay. [The R.V. park] is where you physically live, correct?

A: Yes, sir.

                                      .   .    .

Q: Okay. You’ve lived continuously in Montgomery County since 1969?

A: Yes, sir.

                                      .   .    .

Q: Okay. Did you feel that it was appropriate to use [the Pickering Road address] as
an address because it was the official address on your driver’s license?


                                          11
       A: Yes, sir.

       Q: Okay. Were you trying to trick or deceive or engage in any shark practices or fool
       anybody by using that address?

       A: No, sir.

                                               .   .    .

       Q: And do you make payments for the spot at the R.V. park?

       A: Yes, sir.

       Q: Okay. And how long have you lived there?

       A: It’s been probably three years. Almost three years.

       On November 12, 2009, Casey filed a first amended motion in arrest of judgment and for a

new trial. On November 18, 2009, he filed a second amended motion in arrest of judgment and for

a new trial. In that second amended motion, Casey argued that E.P. was “not a qualified voter”

within the meaning of Article 35.16 of the Texas Code of Criminal Procedure because E.P., at the

time of trial, did not live at the Pickering Road address and in fact had “no actual permanent

residence” in Montgomery County. Casey argued further that E.P., in failing to put his correct home

address on his juror questionnaire, had engaged in “corrupt conduct” within the meaning of Texas

Rule of Appellate Procedure 21.3(d). On November 19, 2009, the trial court held a hearing on

Casey’s second amended motion and overruled it.

       We turn first to Casey’s argument that the trial court erred in denying his second amended

motion in arrest of judgment and for a new trial because E.P., at the time of trial, had “no actual

permanent residence” in Montgomery County and, therefore, was not a qualified voter of that county.

Article 35.16 requires that jurors be eligible to vote in the county in which the trial is being held.


                                                   12
Mayo v. State, 4 S.W.3d 9, 11 (Tex.Crim.App. 1999); TEX . CODE CRIM . PROC. ANN . art. 35.16 (a)(1)

(West 2006). To be eligible to vote, a juror must, among other things, be a resident of the county.

Mayo, 4 S.W.3d at 11. On this record, the trial court could have reasonably concluded that E.P. was,

at the time of trial, a resident of Montgomery County.

        We turn next to Casey’s argument that the trial court erred in denying his second amended

motion in arrest of judgment and for a new trial because E.P., in failing to put his correct home

address on his juror questionnaire, engaged in corrupt conduct. Texas Rule of Appellate Procedure

21.3(d) provides that “[t]he defendant must be granted a new trial . . . when a juror has been bribed

to convict or has been guilty of any other corrupt conduct.” TEX . R. APP. P. 21.3(d). On this record,

the trial court could have reasonably concluded that E.P., when he wrote on his juror questionnaire

that his home address was 18573 Pickering Road in Conroe, was acting reasonably and in good faith

and was not engaged in “corrupt conduct” within the meaning of Rule 21.3(d).

        We overrule Casey’s fourth issue.

                                           FIFTH ISSUE

        In his fifth issue, Casey argues that the trial court erred in denying his “motions for mistrial

and/or new trial, where the cumulative effect of multiple errors resulted in an unfair trial . . . .” In

this issue, Casey reiterates most of the arguments he made in his first four issues and, in addition,

makes four new arguments. We will address only the four new arguments.

        We turn first to Casey’s argument that the trial court erred in overruling his objection and

denying his motion for mistrial when twelve-year-old G.H. testified with a female employee of the

District Attorney’s Office sitting beside her. The record reflects that Casey objected to this seating

arrangement and moved for mistrial several minutes into G.H.’s testimony.


                                                  13
       To be timely, a request, objection, or motion must be made at the earliest opportunity. King

v. State, 953 S.W.2d 266, 268 (Tex.Crim.App. 1997); TEX . R. APP . P. 33.1. On this record, the trial

court could have properly overruled Casey’s objection and denied his motion for mistrial on the

ground they were untimely.

       We turn next to Casey’s argument that the trial court erred in denying his motion for mistrial

when G.H., during her testimony on direct examination, mentioned Casey’s prior incarcerations.

The record reflects that, during the testimony in question, the following occurred:

       Q: Okay. Let me ask you some things that may be hard to talk about. Okay?

       A: Okay.

       Q: Did anything weird ever happen?

       A: Yes, sir.

       Q: Okay. With whom?

       A: Huh?

       Q: With whom?

       A: William.

       Q: Okay. When you say “William,” who are you talking about?

       A: William Casey. My stepdad.

                                              .   .    .

       Q: Okay. Why didn’t you tell your mom right away?

       A: I was scared to.

       Q: What were you scared of?

       A: I was scared that something would either – I would – I was just scared that either


                                                  14
        something would happen to her or something would happen to [my younger sister].

        Q: Why were you scared of that?

        A: Because I knew about the previous times that William was in jail and I was just
        scared and –

At that point, Casey asked for an instruction to disregard and moved for mistrial.       The trial court

instructed the jury to disregard G.H.’s last answer but denied a mistrial.

        The fact that Casey had been incarcerated was certainly prejudicial and inadmissible under

Evidence Rule 403. See TEX . R. EVID . 403. However, the bare fact of Casey’s prior incarceration,

unembellished, was not so inflammatory as to be incurable by an instruction to disregard. Gardner

v. State, 730 S.W.2d 675, 697 (Tex.Crim.App. 1987). Thus, the trial court did not err in denying

Casey’s motion for mistrial. But even assuming arguendo that the trial court erred, we are persuaded

the error did not have a substantial and injurious effect or influence in determining the jury’s verdict.

King, 953 S.W.2d at 271; TEX . R. APP . P. 44.2(b). The State’s case at the guilt stage was strong.

G.H. testified in considerable detail about how Casey abused her sexually on numerous occasions

over a period of years. Misha Pratt, an employee of Child Protective Services, testified that she

spoke with G.H. on March 27, 2008, and that when she asked G.H. whether she had been sexually

abused, G.H. “put her head on the desk” and “shut down.” Jessica Garrett, G.H.’s stepmother,

testified that on one occasion when G.H. was about ten years old, she spoke with G.H. about the fact

that “nobody has the right to touch” G.H.’s “private area.” G.H., in response to Garrett’s comment,

“put her head down and would not make eye contact, refused to look at anyone or discuss it.”

Linda Butterworth, a psychotherapist, testified that child victims of sexual abuse have “a lot of

trouble disclosing what happened” because they “are afraid that their families will be destroyed.”



                                                   15
Kari Prihoda, a forensic interviewer of children, testified that she interviewed G.H. on March 28,

2008, and that G.H. “knew a lot of information, specific details [about sexual matters] compared to

some of the children” that she had interviewed. Karen Trevino, a registered nurse, testified that she

examined G.H. on March 28, 2008, and found that G.H.’s hymen had two tears or “notches.” Larry

Till, a physician, testified that G.H.’s hymenal notches, because of their exact location, were

probably not congenital and “would tend to corroborate the statement of a child who said that she

had been penetrated by a penis in her vagina.” And P.L., a friend of G.H., testified in detail about

how Casey sexually abused her on one occasion.10

       We turn next to Casey’s argument that the trial court erred in denying his motion for mistrial

when a juror saw him, unshackled and in civilian clothing, being escorted through the courthouse

by two uniformed officers. Casey does not explain which right of his was violated by this

occurrence, but we assume he is concerned about his due-process right to the presumption of

innocence. See Holbrook v. Flynn, 475 U.S. 560 (1986). Being escorted through the courthouse by

uniformed officers, however, need not be interpreted as a sign that one is particularly dangerous, so

we discern no inherent prejudice here and no error in the trial court’s denial of a mistrial.

       We turn finally to Casey’s argument that the trial court erred in not granting his motion for

new trial because “the continued presence of members of Bikers Against Child Abuse in the

courtroom throughout the trial was prejudicial.” As far as we can discern from the record, Casey

first complained about this matter in his motion in arrest of judgment, which he filed after the jury

had returned its verdict on guilt but before the trial court assessed punishment. On this record, then,

the trial court could have properly overruled the complaint as untimely. TEX . R. APP . P. 33.1.


       10
            For the sake of brevity, we have discussed only the highlights of the State’s case.

                                                          16
       Having found no error, we also find no cumulative error, and we overrule Casey’s fifth issue.

                                        CONCLUSION

       We affirm the judgments of the trial court.



                                              GUADALUPE RIVERA, Justice
August 31, 2011

Before Chew, C.J., McClure, and Rivera, JJ.

(Publish)




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