                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-18-00012-CR



          SHAQUYL BLACKWELL, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 202nd District Court
                  Bowie County, Texas
             Trial Court No. 16-F-1162-202




      Before Morriss, C.J., Moseley and Burgess, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                        MEMORANDUM OPINION
            Shaquyl Blackwell stands convicted of indecency with a child, X.X., 1 by sexually touching

her genitals, breast, and buttocks over her clothing.                     During Blackwell’s jury trial, when

Blackwell’s attorney questioned investigating Texarkana, Texas, police officer Mark Shermer,

counsel thoroughly developed the fact that law enforcement’s investigation did little or nothing to

investigate X.X.’s truthfulness or reliability as a witness. Counsel then asked Shermer whether “if

[X.X.] made false reports in the past, that could be important in this case.” With no objection from

the defense, the trial court sustained the State’s objection, instructed the jury that there was no

evidence of any prior false reports, and moved the trial beyond that line of questioning.

            Blackwell appeals his conviction and his resulting twenty-year sentence, asserting that the

above response by the trial court improperly commented on the weight of the evidence and that

insufficient evidence supported his conviction. We affirm the judgment of the trial court, because

(1) sufficient evidence supports Blackwell’s conviction and (2) the trial court did not comment on

the weight of the evidence.

(1)         Sufficient Evidence Supports Blackwell’s Conviction

            On the night of December 11, 2016, Shermer received a call from dispatch regarding

“potential sexual misconduct.” After arriving at the location he was initially given, 2 Shermer was

informed that X.X. had been touched inappropriately by a man who, at the time, was referenced



1
 We refer to the children and their family members by initials or fictitious names in order to protect the children’s
privacy. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014).
2
    Shermer was initially dispatched to X.X.’s mother’s home, and not the location of the alleged incident.


                                                             2
only “as Shaq.” 3 While there, Shermer spoke with X.X.’s mother, Mary Mathews, who told him

the address where the alleged incident had occurred and what she believed happened during the

incident. Shermer also spoke briefly to X.X., who pointed to specific areas of her body to indicate

where Blackwell had allegedly touched her. 4 According to Shermer, X.X.’s demeanor was

consistent with the behavior of other children who had been sexually abused.

           After Shermer completed his investigation at Mathews’ home, he proceeded to the

residence where the offense had allegedly occurred. On his arrival, Shermer learned that X.X.’s

aunt, Fran Adams, resided in the home, along with her children. On that particular weekend, X.X.

had been visiting with her aunt and her cousins at Adams’ apartment. Shermer also was told that

the incident had taken place while Adams was at the grocery store and that Blackwell had been

left to care for the children at the apartment. Shermer explained that, following his investigation,

he contacted Child Protective Services (CPS), made a preliminary written report, and turned the

investigation over to detectives.

           Adams testified that she lived in the apartment with six of her children. Adams stated that

it was customary for X.X. to spend time in her home. Adams explained that Blackwell was her

second cousin and that she knew him fairly well. Like X.X., Blackwell visited Adams’ residence

on a regular basis, and she was comfortable having him around her own children. According to

Adams, Blackwell had been at her home the entire day on the day of the incident. Adams stated

that, during the time she was at home, she did not see Blackwell act toward the children in a manner


3
    It was later determined that “Shaq” was Shaquyl Blackwell.
4
    Shermer demonstrated for the jury where X.X. had pointed.
                                                           3
that would cause her concern. She stated that, before leaving the apartment, X.X. seemed to be in

a “happy state of mind.” When Adams returned home about thirty minutes later, however, X.X.

was upset and crying and wanted to talk to her. Adams said that X.X. told her what had happened

while she was at the grocery store, and she also identified Blackwell as the perpetrator. According

to Adams, after hearing X.X’s accusations, she confronted Blackwell. Adams explained that she

retrieved a baseball bat, “got on top of him and grabbed him by the collar of his shirt and put the

bat up to his head and asked him what did he do to [her] niece, and he told [her] nothing.” Adams

stated, “By the way she was acting, I knew he was lying.”

            X.X.’s cousin, ten-year-old K.A., testified that, at some point during the evening, she went

into the family’s living room in an effort to get one of her little sisters and X.X. to join her in

Adams’ room. When she got to the living room, K.A. saw her sister, but X.X. was not there. K.A.

took her sister back to Adams’ room. Eventually, X.X. joined K.A. and her sisters. According to

K.A., X.X. was crying, upset, and had two “big scratch marks” on her neck and chest. K.A. stated

that she had not previously seen the red marks on X.X. K.A. also said X.X. explained to her what

had just occurred. Shortly after their conversation, K.A. found X.X. in the kitchen searching for a

knife. 5 K.A. stated that when Adams returned home from the store, she heard X.X. tell Adams

what had happened while she was gone. During the conversation, Blackwell remained in the

residence.

            X.X. testified that she had not met Blackwell before the day of the incident. According to

X.X., at the time Adams left, X.X. was in the living room with Blackwell and her cousins were in


5
    K.A. said X.X. was unable to find a knife.
                                                     4
Adams’ room watching television. X.X. explained that she sat down by Blackwell on the couch

and that he started touching her on her “middle part,” on her chest, and “in [her] behind.” When

asked what she meant when she said “middle part,” X.X. responded, “My pocketbook.” X.X. was

then asked, “Is it a private part?” She responded that it was, that it was something under her

clothes, and that it was covered by her clothes and her underwear. X.X. stated that Blackwell used

his hands to touch her in all three areas and that he did so over the top of her clothes.

       According to X.X., after Blackwell touched her, she went into the bathroom. Blackwell

followed her, telling her “[she] was a virgin.” X.X. said that Blackwell then held her hands above

her head “and started humping on [her]” while he held her against the wall. X.X. explained that

“humping” was “something like dogs do.” She stated that Blackwell was moving his “middle

part” while he was touching her. X.X. said that Blackwell was clothed at the time he was touching

her. According to X.X., her cousins were not around during the incident, but she called for them

afterwards. X.X. said that she told K.A. what had just occurred. X.X. stated that she found a knife

in the kitchen and threatened Blackwell with it. About that time, Adams returned home, X.X. told

her what had happened, and Adams contacted X.X.’s mother. According to X.X., she heard

Blackwell admit to Adams that he had touched X.X. On cross-examination, X.X. stated that the

red marks on her chest and neck were the result of Blackwell scratching and biting her.

       Jessica Kelly, a Texarkana Children’s Advocacy Center forensic interviewer, stated that

X.X.’s demeanor during her interview was consistent with what she had observed in other children

who had been abused. Kelly testified that there were no signs that X.X. had been coached to make

allegations against Blackwell. She said that X.X. used terminology and language that were

                                                  5
consistent with her age. According to Kelly, X.X. told her, in detail, who touched her and where

she had been touched, and X.X.’s version of events remained the same throughout the interview.

Kelly explained the use of anatomical drawings and dolls and the reasons they use them during

interviews with children. 6 When asked if she recalled the areas where X.X. indicated she had been

touched, Kelly answered with some detail. According to Kelly, those were the three areas X.X.

identified “through her words and through the drawings” as being the parts of her body Blackwell

had touched. 7 Kelly also explained that, in cases such as this, “there’s seldom ever DNA or proof

or evidence, so that’s another reason that we search for sensory details that tell us that the child

really did live through what happened and what they’re reporting.”

            Dustin Thompson, a detective for the Texarkana, Texas, Police Department, testified that

he interviewed Blackwell on December 13, 2016, and that Blackwell denied touching X.X in an

inappropriate manner. 8 Thompson stated that Blackwell merely recited what was contained in the

offense report. Thompson said that the fact that Blackwell refused to provide his own version of

events caused him concern and raised “red flags.” Thompson had the opportunity to watch Kelly




6
    Kelly explained,

            So we don’t ever assume anything, so one reason we use the drawings is for clarification to
            understand what body parts they’re calling what and where it might’ve happened to, so that we don’t
            assume. And then another reason that we use them is just to understand. Sometimes children aren’t
            able to use their words, and so the drawings or the dolls might be a better way that they can show it
            in an appropriate way, which helps us to understand what happened with them if they’re not able to
            communicate it with their words.
7
    The drawings were not introduced into evidence.
8
    During the interview, Blackwell stated repeatedly that he had not touched X.X. “sexually.”

                                                             6
interview X.X. According to Thompson, X.X.’s version of events remained the same throughout

the process.

            On cross-examination, Thompson was asked if he had “investigate[d] the victim,” to which

he responded, “[N]o, sir.” 9 Likewise, he was asked if he had spoken to X.X.’s friends to determine

“what type person she is,” to which he responded he had not. Thompson was also asked if he had

spoken to X.X.’s teachers, principals, school counselors, stepfather, or classmates for the same

reason. Thompson responded that he had not. Next, Thompson was asked if he followed up on

X.X.’s version of events. Thompson answered, “Sir, at the time of the story, the detail that she

described vividly, it was my opinion that the child should not have that knowledge at the age that

she was at.” He also added that there were no other leads to follow because there were no other

suspects except Blackwell. Thompson stated that there were no photographs taken of the injuries

described by X.X. and K.A.. 10 When Blackwell asked Thompson what methods he used to “rule

out false allegations,” Thompson explained that the interviewer for the Child Advocacy Center

asked questions to determine whether X.X. had been telling the truth about the incident.

            Blackwell contends that the evidence was insufficient to sustain the conviction because the

State failed to prove he touched X.X.’s breast or genitals. In evaluating the evidence for legal

sufficiency, we review all of the evidence in the light most favorable to the trial court’s judgment

to determine whether any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)


9
 Thompson later explained that it was not typical for the department to investigate a child victim when he or she makes
allegations of sexual abuse.
10
     Thompson stated that if X.X. had sustained an injury, he believed that photographs would have been taken.
                                                           7
(plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1972); Hartsfield v. State, 305

S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). We examine legal sufficiency under

the direction of the Brooks opinion, while giving deference to the responsibility of the fact-finder

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

from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)

(citing Jackson, 443 U.S. at 318–19; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007). The legal sufficiency of evidence is measured against the elements of the offense as defined

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). Such charge would be one that accurately sets out the law, is authorized by the indictment,

does not unnecessarily restrict the State’s theories of liability, and adequately describes the

particular offense for which a defendant is being tried. Gollihar v. State, 46 S.W.3d 243, 253 (Tex.

Crim. App. 2001).

         Here, Blackwell was indicted for the offense of indecency with a child by sexual contact.

The indictment against Blackwell stated, “[O]n or about December 11, 2016, [Blackwell] did then

and there, with the intent to arouse or gratify the sexual desire of [Blackwell] engage in sexual

contact with [X.X.] by touching the breast, genitals and buttocks through the clothing of [X.X.], a

child younger than 17 years of age.” 11 At trial, the State elicited the following relevant evidence:

                  Q.       Okay. And you said [Blackwell] started talking to you and then he
                           started touching you?

                  A.       Yes.

11
  The elements of the offense of indecency with a child are that the accused (1) knowingly or intentionally (2) engaged
in sexual contact (3) with a child (4) younger than seventeen years of age (5) who was not the spouse of the accused.
TEX. PENAL CODE ANN. § 21.11(a)(1) (West Supp. 2018).
                                                          8
Q.   Where did [Blackwell] touch you?

A.   In my middle part.

Q.   In your middle part. Where else?

A.   On my chest.

Q.   On your chest. Where else?

A.   In my behind.

Q.   On your behind. When you say your middle part, can you tell the
     ladies and gentlemen what you call your middle part? Do you have
     another name for that?

A.   My pocketbook.

Q.   Your [p]ocketbook. Is it a private part?

A.   Yes.

Q.   Is it something under your clothes?

A.   Yes.

Q.   What covers it?

A.   My clothes and underwear.

Q.   So your panties cover what you call your middle part?

A.   Yes.

Q.   Okay so when [Blackwell] touched you on those places what part of
     his body did he use to touch you there?

A.   His hands.

Q.   His hands. Did he touch under your clothes or on top of your
     clothes?
                              9
               A.     On top of my clothes.

               Q.     And he touched you on all three of those places with his hands?

               A.     Yes, ma’am.

       Specifically, Blackwell contends that “there [was] no evidence that to [X.X.,] middle part,

private part, or pocket book [were] synonymous with genitals” nor was there any evidence that the

word “chest,” as X.X. understood it, meant breast. Thus, according to Blackwell, the State failed

to elicit testimony in a clear and sufficient manner to establish the elements, as pled, beyond a

reasonable doubt. We disagree.

       The testimony of a child sexual abuse victim alone is sufficient to support a conviction for

indecency with a child. Martinez v. State, 178 S.W.3d 806, 814 (Tex. Crim. App. 2005). Courts

give wide latitude to the testimony given by a child victim of sexual abuse. Villalon v. State, 791

S.W.2d 130, 134 (Tex. Crim. App. 1990). The victim’s description of what occurred need not be

precise, and she is not expected to express herself at the same level of sophistication as an adult

would do. Id. There exists no requirement that the victim’s testimony be corroborated by medical

or physical evidence. Lee v. State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.] 2004),

aff’d, 206 S.W.3d 620 (Tex. Crim. App. 2006) (lack of physical or forensic evidence is factor for

jury to consider in weighing evidence). “[T]he requisite specific intent to arouse or gratify the

sexual desire of any person can be inferred from the defendant’s conduct, his remarks and all

surrounding circumstances.” McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981)

(citing Turner v. State, 600 S.W.2d 927 (Tex. Crim. App. 1980).


                                                10
       X.X. was ten years of age at the time she testified at trial. Thus, X.X.’s description of what

happened to her did not need to be precise, and she was not required to express herself as an adult

might be capable of doing. Villalon, 791 S.W.2d at 134 (“[W]e cannot expect the child victims of

violent crimes to testify with the same clarity and ability as expected of mature capable adults.”).

Texas courts have held evidence sufficient to support a conviction for indecency with a child

regardless of the unsophisticated language the child uses. See Clark v. State, 558 S.W.2d 887, 889

(Tex. Crim. App. 1977) (evidence sufficient to show sexual contact where complainant testified

appellant touched her “front butt”). Here, X.X. used the terms “pocket book,” “middle part,”

“chest,” and “behind” to describe the areas of the body where Blackwell was alleged to have

touched her. She also acknowledged that those areas were underneath her clothing. Even more

specifically, X.X. explained that her “middle part” was located beneath her underwear. Moreover,

in addition to X.X.’s testimony, Kelly testified that during her interview with X.X., X.X. told her,

in detail, where Blackwell had touched her, stating,

       Okay. So she called her boobs her boo-boos. She also used other consistent
       language such as kitty-cat, coochie-cat, other things that were consistent with, you
       know, children of her age. Those were her words. She used those throughout. And
       she also called it her butt, and her bobo, I think was the other words.

Kelly also testified that X.X. indicated in drawings that Blackwell touched her on her breast,

genitals, and buttocks. When we consider X.X.’s testimony, along with Kelly’s explanation

regarding X.X.’s choice of words, we find that the State presented sufficient evidence to show that

Blackwell touched the areas of X.X.’s body as described in the indictment against him.

       We overrule this point of error.


                                                11
(2)     The Trial Court Did Not Comment on the Weight of the Evidence

        Blackwell also contends that the trial court improperly commented on the weight of the

evidence in regard to X.X.’s credibility, veracity, or the lack thereof. At trial, Shermer testified

that he had no knowledge of X.X.’s background, whether she had psychological issues, whether

she was a known liar or known exaggerator, or whether X.X. had a reputation for being truthful.

After Blackwell elicited that information, Shermer was asked whether he would agree “that if she

made false reports in the past, that could be important in this case?” The State’s objection resulted

in a conference at the bench.

        At the bench, the State explained the basis for its objection, stating, “Judge, the State is

objecting to him now putting in front of the jury that this child has given some false report, and

that is not -- there is no evidence of such.” The trial court asked defense counsel, “[W]e have

anything like that?” Blackwell responded, “I’m asking. It’s just a question.” The State replied,

“When he asked the first line of questioning, that was proper. Now he’s gone a step further.”

Blackwell then asked the State, “What’s the objection?” The trial court explained, “Well, you’re

misleading the jury. You’re introducing evidence that doesn’t exist. So you can ask and phrase it

--.” Counsel stated, “I was asking just a question. This is just from --.” The State responded, “But

the State’s concern is that it’s been placed in front of this jury that this child has potentially given

some false reports, and that is not true.” The trial court stated,

               All right. I’m going to admonish the jury that there has been no evidence
        of any prior -- I need to write this correctly. This is big.

                (Pause in the proceedings.)


                                                  12
                 Now, you can ask questions like are you aware if she ever did or something
         like that, but the problem is we can’t do what you did. You stepped, okay? So I’m
         going to admonish them, and then we’re going to go on to something else.

         The trial court then explained to the jury, “Ladies and gentlemen, at this time I want to

instruct you that there is no evidence of any prior accusations. I don’t want anybody to be misled,

and I think we’re not going that direction, okay?” Blackwell did not object to the trial court’s

instructions. 12 He did, however, continue to elicit testimony from Shermer regarding Shermer’s

failure to speak with X.X.’s teachers, principal, school counselors, and stepfather as a part of his

investigation. Shermer also stated that he was unaware of whether X.X.’s version of the incident

remained consistent throughout the investigation and the court proceedings.

         Blackwell contends that X.X.’s credibility or lack thereof was central to his defense and

that, when the trial court made the complained-of statements, it sua sponte commented on the

weight of the evidence and that it did so in a manner reasonably calculated to benefit the State or


12
  In 2017, the Texas Court of Criminal Appeals discussed the rules of error preservation, explaining that there are
“three distinct kinds: (1) absolute requirements and prohibitions; (2) rights of litigants which may be implemented by
the system unless waived; and (3) rights of litigants which are to be implemented upon request.” Proenza v. State,
541 S.W.3d 786, 792 (Tex. Crim. App. 2017) (quoting Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 275, 279
(Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997)). The
court “referred to these separate classifications as category-one, -two, and -three Marin rights, respectively.” Id.
When an error falls into one of the first two classifications, “it involves (1) a violation of an absolute systemic
requirement, or (2) a violation of a right that is waivable only. . .” Id. at 792. In either of these two instances, the
error may be brought to a court’s attention for the first time on appeal. All other complaints involve category three
rights and are forfeited if not preserved. Id. The court held “that claims of improper judicial comments raised under
Article 38.05 are not within Marin’s third class of forfeitable rights. Rather, we believe that the right to be tried in a
proceeding devoid of improper judicial commentary is at least a category-two, waiver-only right.” Id. at 801. It is
within an appellate court’s discretion to “take notice of a fundamental error affecting a substantial right, even if the
claim of error was not properly preserved.” TEX. R. EVID. 103(e). The trial court’s comments must be to “such a
level as to bear on the presumption of innocence or vitiate the impartiality of the jury.” Jasper v. State, 61 S.W.3d
413, 421 (Tex. Crim. App. 2001).
          In the present case, the record does not reflect that Blackwell “plainly, freely, and intelligently waived his
right to his trial judge’s compliance with Article 38.05, [thus,] his statutory claim in this matter is not forfeited and
may be urged for the first time on appeal.” Porenza, 541 S.W.3d at 801.

                                                           13
prejudice his right to a fair and impartial trial. The State maintains that the trial court’s actions

were proper because Blackwell was not entitled to ask an irrelevant question and because there

was no factual basis that X.X. had previously made false allegations.

            Article 38.05 of the Texas Code of Criminal Procedure prohibits a trial court from

commenting on the weight of the evidence. TEX. CODE CRIM. PROC. ANN art. 38.05 (West 1979). 13

A trial court improperly comments on the weight of the evidence if it makes a statement that

(1) implies approval of the State’s substantive or underlying argument, (2) indicates any disbelief

in the defense’s position, or (3) diminishes the credibility of the defense’s approach to its case.

Hoang v. State, 997 S.W.2d 678, 681 (Tex. App.—Texarkana 1999, no pet.). Other factors that

may be evaluated are whether the remarks by the trial court were made in the presence of the jury.

Silva v. State, 635 S.W.2d 775, 778 (Tex. App.—Corpus Christi 1982, pet. ref’d); Richardson v.

State, 632 S.W.2d 700, 702 (Tex. App.—Fort Worth 1982, no pet.). We also consider whether

the trial court’s comments, however impartially they might have been made, potentially led the

jury to infer the court’s own opinion on the merits of the case. Silva v. State, 635 S.W.2d 775, 778

(Tex. App.—Corpus Christi 1982, pet. ref’d) (“Whether appellant received a fair trial in light of

the comments made by the court is a close question. But, we refuse to reverse because the

statements were not made in the presence of the jury. . . .”)). In addition, we may consider the


13
     Article 38.05 states,

            In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight
            of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor
            shall he, at any stage of the proceeding previous to the return of the verdict, make any remark
            calculated to convey to the jury his opinion of the case.

TEX. CODE CRIM. PROC. ANN. art. 38.05.
                                                            14
consequences that probably resulted from the trial court’s comments to determine whether the

comments prejudiced the defendant’s rights. Clark v. State, 878 S.W.2d 224, 226 (Tex. App.—

Dallas 1994, no pet.).

         Blackwell contends that the trial court’s comments unfairly prejudiced the jury; however,

much of the complained-of exchange took place at the bench and outside of the jury’s ability to

hear the conversation or the trial court’s statements. As to those statements, Blackwell cannot

show that the trial court’s statements implied approval of the State’s argument, nor can he show

that the statements indicated a disbelief in Blackwell’s case or that it diminished the credibility of

the approach to his case. See Hoang, 997 S.W.2d at 681. Simply stated, Blackwell has not

demonstrated that the comments made by the trial court outside of the jury’s presence unfairly

influenced the jury or prejudiced him.

         As to the portion of the trial court’s statements heard by the jury, we identify two main

elements: the statement that there is no evidence of a prior false report and the intent to move on

to other topics. We conclude that neither element was improper.

         The Texas Court of Criminal Appeals has held that comments directed at “maintaining

control” of or “expediting” the trial are responsibilities over which the trial court has “broad

discretion.” Jasper, 61 S.W.3d at 421.14 Here, Blackwell had asked a series of questions regarding

the extent of Shermer’s investigation into X.X.’s background, all in an attempt to raise questions

regarding X.X.’s reputation for truthfulness or lack thereof. The trial court’s comments at the


14
 In Jasper, the court recognized several types of comments that do not rise to the level of fundamental error, including
comments to the jury correcting counsel’s misstatement or misrepresentation of previously admitted testimony, to
maintain control and expedite the proceedings, to clarify a point of confusion, or to reveal irritation with counsel.
Jasper, 61 S.W.3d at 421.
                                                          15
bench indicated that further questioning regarding the same topic was unnecessary, stating, “So

I’m going to admonish [the jury] and then we’re going to go on to something else.” The trial

court’s explanation to the parties demonstrated its effort to maintain control over the proceedings

and to expedite the trial.

        In addition, the Texas Court of Criminal Appeals has held, “It is not improper for a trial

judge to interject in order to correct a misstatement or misrepresentation of previously admitted

testimony.” Id. Despite the fact that Shermer was not given an opportunity to answer Blackwell’s

question, clearly, the trial court was preventing the jury from reaching an incorrect conclusion

from the implication of allegations unsupported by the evidence. After asking several questions

relating to Shermer’s investigation of X.X., Blackwell asked, “But you would agree with me that

if she made false reports in the past, that could be important in this case?” Regardless of whether

Shermer answered “yes” or “no,” Blackwell’s inquiry could have easily left in the minds of the

jury that X.X. had previously made false reports. Further, prior to the trial court making the

complained-of statements, the court twice inquired of Blackwell as to whether he had any evidence

that X.X. had made untruthful reports in the past. In each response, Blackwell offered or

referenced no such evidence. Blackwell was clearly inviting the jury to draw an inference from

facts that were not in evidence. The trial court’s comment alleviated any potential confusion the

jury might have had, which confusion would have stemmed directly from Blackwell’s factually

unsubstantiated inquiry.

        Regardless, Blackwell states that, at trial, he “attempted to undermine the credibility of

X.X. by illuminating the lack of law enforcement’s investigation into the credibility, veracity, and

                                                16
history of X.X., but the court would not allow [him] to fully pursue these proper lines of

communication.” The record does not support Blackwell’s contention. To the contrary, Blackwell

was given the opportunity to ask Shermer if he spoke with, among other individuals, X.X.’s

friends, teachers, principal, school counselor, and stepfather. As to each of those questions,

Shermer responded by stating that he had not spoken to any of those individuals. In addition to

Shermer’s testimony, Blackwell also asked similar questions of Thompson regarding the extent of

his investigation of X.X.’s background and credibility.                     Although the trial court prevented

Blackwell from asking Shermer about X.X. making false reports, it did not prevent him from

inquiring, thoroughly, about law enforcement’s non-investigation into X.X.’s credibility or

veracity.

         In sum, the trial court’s statement did not imply approval of the State’s underlying

argument questioning X.X.’s truthfulness, indicate any disbelief of the appellant’s defenses, or

diminish the credibility of the defense’s approach to its case. Instead, it prevented Blackwell from

leading the jury into the mistaken belief that X.X. had made prior false reports in relation to an

offense similar to the one for which he was then standing trial. We therefore find that the trial

court did not improperly comment on the weight of the evidence. 15

         We overrule this point of error.




15
  Because we find that the trial court did not improperly comment on the weight of the evidence during trial, we find
it unnecessary to address Blackwell’s contention that the trial court’s written instructions to the jury failed to cure the
purported error.
                                                           17
      We affirm the judgment of the trial court.



                                           Josh R. Morriss, III
                                           Chief Justice

Date Submitted:      September 17, 2018
Date Decided:        October 12, 2018

Do Not Publish




                                              18
