                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-08-00305-CR

JAMES TIPPETT,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                           From the 13th District Court
                             Navarro County, Texas
                            Trial Court No. 31154-CR


                          MEMORANDUM OPINION


      A jury found Appellant James Tippett guilty of indecency with a child and

assessed a fifteen-year prison sentence and $5,000 fine. In this appeal, he raises two

issues. We will affirm.

      Tippett’s first issue asserts that the evidence is factually insufficient. In a factual

sufficiency review, we ask whether a neutral review of all the evidence, though legally

sufficient, demonstrates either that the proof of guilt is so weak or that conflicting

evidence is so strong as to render the factfinder’s verdict clearly wrong and manifestly
unjust. Watson v. State, 204 S.W.3d. 404, 414-15 (Tex. Crim. App. 2006); Johnson v. State,

23 S.W.3d 1, 11 (Tex. Crim. App. 2000). “The court reviews the evidence weighed by

the jury that tends to prove the existence of the elemental fact in dispute and compares

it with the evidence that tends to disprove that fact.” Johnson, 23 S.W.3d at 7 (quoting

Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). The appellate court “does not

indulge in inferences or confine its view to evidence favoring one side of the case.

Rather, it looks at all the evidence on both sides and then makes a predominantly

intuitive judgment. . . .” Id. (quoting William Powers and Jack Ratliff, Another Look at

“No Evidence” and “Insufficient Evidence,” 69 TEXAS L. REV. 515, 519 (1991)). The nature of

a factual sufficiency review authorizes an appellate court, although to a very limited

degree, to act as the so-called “thirteenth juror” to review the factfinder’s weighing of

the evidence and disagree with the factfinder’s determination. Watson, 204 S.W.3d at

416-17.

         A person commits the offense of indecency with a child “if, with a child younger

than 17 years, . . . the person . . . engages in sexual contact with the child or causes the

child to engage in sexual contact.” TEX. PEN. CODE ANN. § 21.11(a)(1) (Vernon 2003)

(current version at id. (Vernon Supp. 2009)). Tippett was charged by indictment with

one count of indecency with a child by engaging in sexual contact with A. by touching

her genitals.

         The victim, Tippett’s former stepdaughter, was fourteen years of age when the

events in question occurred. She testified that Tippett touched her genitals with his

hand while she was riding in his truck. A minor complainant’s testimony alone is

Tippett v. State                                                                      Page 2
sufficient to support a conviction for indecency with a child. See Abbott v. State, 196

S.W.3d 334, 341 (Tex. App.—Waco 2006, pet ref’d).           Tippett argues, however, that

various aspects of A.’s testimony reflect inconsistencies and contradictions that render

the evidence factually insufficient. For example, on the occasion in the truck, A. initially

denied that Tippett had exposed himself, but after a break (during which A. said no one

discussed her testimony with her), she testified that he had done so but she initially had

not remembered. Tippett also complains that there are inconsistencies between A.’s

version and the versions recounted by A.’s mother, an aunt (Susie Jackson), and a

friend, who testified as outcry witnesses.

         The State acknowledges the inconsistencies and conflicts but also points out the

consistencies and highlights evidence that corroborates key parts of A.’s testimony,

including that Tippett showed A. pictures of nude adults and talked to her about sex

and that Tippett showed A. and A’s friend a pornographic video.

         The jury is the exclusive judge of the facts, the credibility of the witnesses, and

the weight to be given to the witnesses’ testimony. Jaggers v. State, 125 S.W.3d 661, 670

(Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (citing Penagraph v. State, 623 S.W.2d

341, 343 (Tex. Crim. App. 1981)). The jury may believe all, some, or none of any

witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Jaggers,

125 S.W.3d at 670.

         The jury was faced with some conflicting evidence. As the reviewing court, we

“should not substantially intrude upon the jury’s role as the sole judge of the weight




Tippett v. State                                                                      Page 3
and credibility of witness testimony.” Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim.

App. 2002); see also Sharp, 707 S.W.2d at 614; Jaggers, 125 S.W.3d at 670.

         The degree of deference a reviewing court provides must be proportionate
         with the facts it can accurately glean from the trial record. A factual
         sufficiency analysis can consider only those few matters bearing on
         credibility that can be fully determined from a cold appellate record. Such
         an approach occasionally permits some credibility assessment but usually
         requires deference to the jury’s conclusion based on matters beyond the
         scope of the appellate court’s legitimate concern. See GEORGE E. DIX &
         ROBERT O. DAWSON, 42 TEXAS PRACTICE—CRIMINAL PRACTICE AND
         PROCEDURE § 36.69 (Supp. 1999). Unless the available record clearly
         reveals a different result is appropriate, an appellate court must defer to
         the jury’s determination concerning what weight to give contradictory
         testimonial evidence because resolution often turns on an evaluation of
         credibility and demeanor, and those jurors were in attendance when the
         testimony was delivered.

Johnson, 23 S.W.3d at 8.

         We must defer to the jury’s determination concerning what weight to give

contradictory or conflicting testimonial evidence. See, e.g., In re A.B., 133 S.W.3d 869,

873-74 (Tex. App.—Dallas 2004, no pet.); Scugoza v. State, 949 S.W.2d 360, 362-63 (Tex.

App.—San Antonio 1997, no pet.); Fetterolf v. State, 782 S.W.2d 927, 933 (Tex. App.—

Houston [14th Dist.] 1989, pet. ref’d); see also Johnson, 23 S.W.3d at 7-8. Considering all

of the evidence in a neutral light, we find that the jury was justified in finding Tippett

guilty. Issue one is overruled.

         Tippett’s second issue asserts that the trial court erred in excluding from

evidence the fact that the outcry witness’s (Jackson’s) parental rights to her three

children had been terminated. Jackson testified that she had two felony convictions for

which she had served concurrent prison sentences. She said that she had three children,


Tippett v. State                                                                       Page 4
and on cross-examination, Tippett established that she did not have custody of them.

Tippett sought to elicit testimony from her that she did not have custody because her

parental rights had been terminated. The trial court excluded that evidence.

         We review a trial court’s admission or exclusion of evidence for abuse of

discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). “A trial court

abuses its discretion when its decision is so clearly wrong as to lie outside that zone

within which reasonable persons might disagree.” Moreno v. State, 858 S.W.2d 453, 463

(Tex. Crim. App. 1993); see also Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App.

2007).

         Tippett argues that by testifying she had three children, Jackson was able to

create a false impression that “opened the door” for Tippett to show her parental rights

had been terminated. The general rule is that a party is not entitled to impeach a

witness on a collateral matter. Ramirez v. State, 802 S.W.2d 674, 675 (Tex. Crim. App.

1990). The test as to whether a matter is collateral is whether the cross-examining party

would be entitled to prove it as a part of his case tending to establish his plea. Id. An

exception exists: “[w]hen a witness leaves a false impression concerning a matter

relating to his or her credibility, the opposing party is allowed to correct that false

impression.” Id. at 676. In this case, the trial court allowed Tippett to correct any false

impression by letting him elicit during cross-examination the fact that Jackson did not

have custody of her children. The trial court did not abuse its discretion in excluding

evidence of the termination of Jackson’s parental rights. See Hammer v. State, 296 S.W.3d




Tippett v. State                                                                     Page 5
555, 563 (Tex. Crim. App. 2009) (citing Texas Rule of Evidence 608(b)). We overrule

issue two.

         We affirm the trial court’s judgment.




                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed August 4, 2010
Do not publish
[CR25]




Tippett v. State                                                              Page 6
