             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00031-CR
     ___________________________

 JOHN MICHEAL MCBRIDE, Appellant

                     V.

          THE STATE OF TEXAS


  On Appeal from the 90th District Court
         Young County, Texas
         Trial Court No. 10678


  Before Sudderth, C.J., Meier and Kerr, JJ.
   Memorandum Opinion by Justice Kerr
                          MEMORANDUM OPINION

      A jury found appellant John Micheal1 McBride guilty of sexually assaulting a

child and assessed his punishment at 15 years in the penitentiary, and the trial court

sentenced him accordingly. Holding that McBride failed to preserve his first appellate

issue and waived his second, we affirm.

      McBride’s two issues

      In his first issue, McBride asserts that the trial court erroneously admitted an

extraneous offense because the State had not given him the required article 38.37 30-

day notice. See Tex. Code Crim. Proc. Ann. art. 38.37, § 3 (West 2018). And in his

second issue, he asserts that the trial court erroneously admitted the same extraneous

offense because the danger of unfair prejudice substantially outweighed its probative

value. See Tex. R. Evid. 403, 404(b). The extraneous act about which McBride

complains in both issues is that he engaged in oral sex with the complainant, which, as

he correctly notes, was not alleged in the indictment. The State’s indictment charged

McBride only with intentionally and knowingly digitally penetrating a child’s sexual

organ. Tex. Penal Code Ann. § 22.011(a)(1)(A), (a)(2)(A), (c)(1) (West Supp. 2018).

      The State responds that the complained-of evidence is not an extraneous

offense but same-transaction contextual evidence, which is intrinsic to the offense and

thus admissible. See Worthy v. State, 312 S.W.3d 34, 39 (Tex. Crim. App. 2010). But


      1
       So spelled.


                                          2
because we hold that McBride has not preserved his first complaint and waived his

second, we need not decide whether the State is correct.

       First Issue

       McBride never objected at trial that the State failed to give him timely notice.

Without an objection and adverse ruling, we hold that he has not preserved his

appellate complaint and overrule his first issue. See Tex. R. App. P. 33.1; Belcher v. State,

474 S.W.3d 840, 850 (Tex. App.—Tyler 2015, no pet.).

       Second Issue

       McBride’s next issue complains about the trial court’s admitting oral-sex

evidence generally and, more specifically, about its admitting DNA evidence. As we

understand his argument, saliva more likely produced the DNA evidence than any

touching did, so the DNA evidence was far more likely to prove that he engaged in

oral sex than that he digitally penetrated the complainant.2 Because the State did not

charge McBride with oral sex and because McBride contends that oral sex inflames

jurors’ judgment more than digital penetration, he maintains that the danger of unfair

prejudice greatly outweighed the DNA evidence’s probative value. See Tex. R. Evid.

403, 404(b).

       Assuming that digital penetration was less likely than saliva to leave DNA
       2

evidence, this argument ties in with the State’s contention that, for the jury to properly
understand the evidence, it needed to know that oral sex, which was more likely to
leave DNA evidence, was part of an indivisible criminal transaction and thus
admissible. See Beltran v. State, 517 S.W.3d 243, 248–49 (Tex. App.—San Antonio
2017, no pet.). Our holding that McBride waived his second issue moots this
question.

                                             3
      To the extent that McBride complains about the trial court’s admitting oral-sex

evidence generally, in his brief he does not point to where in the record he objected to

non-DNA-related oral-sex testimony. Indeed, as we will show, oral-sex testimony

unrelated to the DNA evidence came in repeatedly without objection. McBride thus

failed to preserve this complaint. See Tex. R. App. P. 33.1.

      But to the extent that McBride complains about the trial court’s admitting

DNA evidence and the accompanying testimony showing that the DNA was more

likely the product of oral sex than digital penetration, both McBride’s brief and the

record show that he consistently objected and obtained adverse rulings. For analytical

purposes, though, McBride’s DNA arguments dovetail with and are ultimately

decided by the oral-sex testimony generally.

      That is, McBride’s failure to keep out the non-DNA-related oral-sex testimony

guts his attacking the DNA evidence on the theory that it more likely proved oral sex

than digital penetration. When the same evidence comes in without objection, either

before or after a complained-of ruling, we will not reverse. See Leday v. State,

983 S.W.2d 713, 718 (Tex. Crim. App. 1998); Cantrell v. State, No. 02-04-00083-CR,

2005 WL 1119808, at *5 (Tex. App.—Fort Worth May 12, 2005, no pet.) (mem. op.,

not designated for publication). Here, both before and after DNA analyst Heather

Kramer testified, evidence that McBride engaged in oral sex with the complainant

came in numerous times without objection.



                                            4
      For example, before Kramer took the stand, Christa Thornhill (the

complainant’s sexual-assault nurse-examiner) testified that the complainant had

described her medical history, and Thornhill then related, without objection, what the

complainant had told her:

      A. [The complainant said,] “I went to the bathroom about 1:00 a.m.
      When I came back to the living room, he came over to me and started to
      rub my leg. I was afraid. I just laid there very still. He pulled off my
      shorts and panties. I said, No. He licked me down there.”

      Q. Where is down there?

      A. She pointed, so I asked her what she called that area, and she said
      “vagina.”

      Q. Okay.

      A. “I didn’t want him to. I told him to stop; that I just needed to go to
      bed. He kept on; going for 30 minutes. Then he stopped. I was crying
      when he left. . . .”

And when asked if the complainant described any other sexual act, Thornhill

responded, “Yes. She said, ‘He licked me down there,’ and pointed at the vagina, ‘and

fingered me down there,’ and indicated her vagina.” On yet another occasion,

Thornhill added:

      A. I asked about oral copulation of genitals.

      Q. What’s oral copulation?

      A. Well, so how I explain it to a 14-year old is did he put his mouth on
      your vagina—

      Q. Okay.

      A. —or did he put his mouth on your anus.

                                           5
      Q. And what is her response to that?

      A. It was “yes” that he put his mouth on her.

Similarly, when recounting the oral medical history that the complainant’s mother had

given her, Thornhill said, “[The complainant] had told her mom he pulled off her

shorts and panties, and he put his fingers inside of her and licked her.” And in her

written findings, which were also admitted into evidence, Thornhill indicated that

there was digital contact with the vagina and genital “[o]ral copulation of the patient

by the assailant.” By the time Kramer later testified, Thornhill’s testimony had already

shown (if the jury found her credible) that McBride had both digitally penetrated the

complainant and had oral sex with her.

      And after Kramer had left the stand, the complainant herself testified—without

objection—as follows:

      [Prosecutor] Q. . . . . So go ahead and finish telling us what happened.

      A. He had laid me down, pushed back on my shoulders, and then he
      took off my shorts and started kissing me down there, and then he put
      his fingers in me. I tried to tell him to stop, but I was being very quiet. I
      didn’t want to wake [up his daughter with whom I was spending the
      night]. I didn’t want her to hear anything, because I didn’t want her to
      see any of that happening because I knew it would hurt her.

      Q. Did he stop?

      A. No.

      Q. Did he just continue on? Did you struggle, or did you just kind of lay
      there? What happened?




                                           6
      A. I tried to push his head up off of me, and it didn’t work. I continued
      to try to get him to stop, and I was saying “no,” but I just—I didn’t want
      to make too much noise, or, if I had maybe struggled a little more, I
      didn’t want to get hurt I guess. I was just scared of what would happen if
      I fought more.

      Q. And you said that he kissed you down there. Are you saying that he
      licked your genital area?

      A. Yes.

      Q. And you said that he put his finger inside of you. Was that in between
      your lips of your genitalia?

      A. Yes.

The complainant indicated that the ordeal lasted for 20 to 30 minutes, and when

asked which activity McBride had done more often during that time, she responded,

“Him licking my vagina.” Once again, other unobjected-to evidence showed that

McBride’s sexual assault encompassed oral sex as well as digital penetration.

      McBride also argues that because identity was not an issue, the danger of unfair

prejudice greatly outweighed the DNA evidence’s probative value. We disagree. The

question was not whether the complainant correctly identified her assailant but

whether the complainant had been assaulted at all. Based on the record, McBride was

apparently willing to take his chances with he-said, she-said evidence but was not

willing to do so against DNA evidence, which gave the jury something other than the

complainant’s word to weigh when deciding whether McBride committed the digital-

penetration offense. Under the circumstances, regardless of the DNA evidence’s

origins, its probative value was great because it showed that inappropriate contact of


                                           7
some kind had occurred, and the other oral-sex evidence effectively mooted any

prejudicial value that the DNA evidence might otherwise have had if it had been the

only link introducing oral sex into the overall assault. See Leday, 983 S.W.2d at 718.

        Next, McBride points to the evidence that the complainant had two fresh

abrasions on her right and left inner labia majora that Thornhill said were consistent

with digital penetration, which he contends eliminated the State’s need for the DNA

evidence. We again disagree. During final argument, McBride argued that the

complainant had manufactured the whole scenario to get attention. In this light, the

abrasions did not necessarily point to McBride’s digitally penetrating the complainant,

but the DNA evidence and Kramer’s testimony did by showing that McBride engaged

in some sort of inappropriate contact—oral, digital, or both—with the complainant.

McBride could perhaps easily explain away the abrasions, but whether he could

explain away his DNA on the complainant’s vagina and underwear would not be so

easy.

        With DNA evidence, the State could directly corroborate part of the

complainant’s testimony—but the question remained: which part? It was either direct

evidence of oral sex and circumstantial evidence of digital penetration, or it directly

proved digital penetration and circumstantially supported oral sex. But this is a

distinction without substance because circumstantial evidence is no less trustworthy

than direct evidence. See Jiminez v. State, 953 S.W.2d 293, 297 (Tex. App.—Austin



                                            8
1997, pet. ref’d). And circumstantial evidence suffices if reasonable inferences taken

from it prove a disputed fact beyond a reasonable doubt. See id.

      In Jiminez, the jury convicted the defendant of causing the complainant’s sexual

organ to contact his mouth. Id. at 296. But when testifying, the complainant said that

the defendant rubbed his face against her naked genitals and that she felt his nose

inside them, but even she could not say whether his mouth had contacted her sexual

organ. Id. On appeal the defendant attacked the evidentiary sufficiency. See id. After

reviewing the evidence, the court overruled his sufficiency complaint, holding that a

rational factfinder could infer beyond a reasonable doubt that when he rubbed his

face against the complainant’s genitals and penetrated them with his nose, he also

caused his mouth to contact her sexual organ. See id. at 297.3

      So assuming McBride’s DNA evidence did not directly confirm digital

penetration, it circumstantially made digital penetration much more likely. See id.

      Because other evidence repeatedly informed the jury that McBride had engaged

in oral sex in addition to digital penetration, we hold that McBride waived any

complaint about Kramer’s testimony and the DNA evidence. See Leday, 983 S.W.2d at

718; Cantrell, 2005 WL 1119808, at *5; see also Tex. R. Evid. 403, 404(b).

      We overrule McBride’s second issue.




      3
         On the same facts, the defendant also lost his factual-insufficiency complaint.
Id. at 297–98.

                                            9
      Conclusion

      Having overruled McBride’s issues, we affirm the trial court’s judgment.




                                                    /s/ Elizabeth Kerr
                                                    Elizabeth Kerr
                                                    Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: December 6, 2018




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