                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-13-00245-CR

RUSSELL SCOTT WALDEN,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                          From the 18th District Court
                            Johnson County, Texas
                             Trial Court No. F45382


                         MEMORANDUM OPINION


       A jury found Appellant Russell Walden guilty of continuous sexual abuse of a

young child (Jane, a pseudonym) and assessed a life sentence. Raising three issues,

Walden appeals. We will affirm.

       We begin with issue two, which asserts that the evidence is insufficient. The

Court of Criminal Appeals has expressed our standard of review of a sufficiency issue

as follows:
              In determining whether the evidence is legally sufficient to support
       a conviction, a reviewing court must consider all of the evidence in the
       light most favorable to the verdict and determine whether, based on that
       evidence and reasonable inferences therefrom, a rational fact finder could
       have found the essential elements of the crime beyond a reasonable doubt.
       Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
       13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the
       responsibility of the trier of fact fairly to resolve conflicts in the testimony,
       to weigh the evidence, and to draw reasonable inferences from basic facts
       to ultimate facts.” Jackson, 443 U.S. at 319. “Each fact need not point
       directly and independently to the guilt of the appellant, as long as the
       cumulative force of all the incriminating circumstances is sufficient to
       support the conviction.” Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

       The Court of Criminal Appeals has also explained that our review of “all of the

evidence” includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326, 99 S.Ct.

at 2793.    Finally, it is well established that the factfinder is entitled to judge the

credibility of witnesses and can choose to believe all, some, or none of the testimony

presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

       Jane testified that she first met Walden on April 1, 2007 (Jane’s ninth birthday) at

the Cleburne Wal-Mart, where her mother Karen (a single mother) and Walden both

worked. As a result of interacting with Walden, Karen began accepting Walden’s offers

to babysit Jane and her younger sister Kate (a pseudonym). This soon led to a dating

relationship, and Karen and Walden married on September 11, 2007. Also, they all



Walden v. State                                                                            Page 2
moved from Cleburne into an apartment in Keene. They later moved into a mobile

home in Keene.

       When Walden babysat them, both Jane and Kate enjoyed being with Walden, but

after Walden and Karen married, they testified that his conduct toward them changed

to being abusive.   Jane, who was age fifteen at the time of trial, testified that in

December of 2007, when she was age nine, Walden took Jane and Kate to the Traveler’s

Inn in Cleburne to spend the night after he and Karen had gotten into an argument.

Jane said that she and Walden slept in one bed and Kate slept in the other. Kate, who is

three years younger than Jane, testified that she and Jane went to a motel with Walden

after he had gotten into an argument with their mother.

       That night, Walden touched the outside of Jane’s vagina and anus and touched

her vagina with his penis, and then he put his penis in her anus.       Jane said that,

thereafter, Walden sexually abused her on almost a daily basis (when Karen was gone

from the home) in the same ways. When she was age eleven or twelve and they had

moved into the mobile home, Walden eventually began to put his penis in Jane’s

mouth. This, she said, occurred many times and continued until she ran away. Jane

testified that Walden also had Jane masturbate him to ejaculation many times.

       On July 31, 2010, when Jane was age twelve, Walden scolded Jane and hit her on

the leg because he was dissatisfied with how she was cleaning the floor, and Jane ran

away to a friend’s home. Jane told the friend’s mother of physical abuse by Walden,

and the friend’s mother called Keene police. While discussing Walden’s physical abuse

with Keene Police Lieutenant Patrick Jones, Jane divulged that there had also been

Walden v. State                                                                   Page 3
sexual abuse. Therefore, according to Jones, he arranged for a forensic interview of Jane

at the Children’s Advocacy Center that evening, and a few days later, a sexual-assault

exam took place. Jones also contacted Child Protective Services.

         Katy Hodges testified that she was a forensic interviewer at the Johnson County

Children’s Advocacy Center and interviewed Jane. Hodges said that Jane told her that

Walden rubbed her vagina with his hand, put his penis in her mouth, and sometimes

showed her his sperm. Jane told her that this happened three to four times a week

when her mother would go to the store.

         Rebecca Sullivan, a forensic nurse who performed the sexual-assault exam on

Jane, testified that Jane told her that Walden began putting his penis in her mouth in

May of 2010 and that it had last happened after July 4th. Jane told her that Walden had

begun rubbing the outside of her vagina when she was age nine. Sullivan testified that

Jane told her that Walden put his mouth on her genitals and that she masturbated

Walden to ejaculation. Jane also told Sullivan that Walden rubbed her anus with his

hand and penis and that the anal touching was painful, which caused Sullivan to be

concerned that there was penile penetration. The finding on the anal exam was normal,

which Sullivan said was not surprising because the last abuse had occurred almost a

month before, superficial injuries to the anus heal rapidly, and the anus is made to

expand and stretch. Sullivan admitted that there was no physical evidence of sexual

abuse.

         The defense called attorney Toni Driver as a witness. In May of 2009, Driver had

been appointed to do a home study in anticipation of Walden’s adoption of Jane and

Walden v. State                                                                    Page 4
Kate, and Driver testified that she saw no signs of abuse. She questioned Jane and Kate

about discipline and abuse and concluded that nothing seemed amiss; they “seemed

like happy children.” But Jane testified that Walden had instructed the girls to put

“happy things” in their journals, to make a good showing for Driver during the home

visit, and not to mention the abuse because it was a secret. Jane also said that she was

afraid of Walden and knew that she would get hit if she told anyone.

        Walden was voluntarily interviewed by police.       A video recording of that

interview was shown to the jury. In that interview, Walden denied sexually abusing

Jane.

        In arguing the insufficiency of the evidence, Walden asserts that the State

presented “little evidence” that Walden sexually abused Jane. Walden notes that Jane

testified that Kate was present when Walden sexually abused her, but Kate, who is

three years younger than Jane, testified that she never witnessed Walden sexually abuse

Jane. Aside from the testimony of Jane, the outcry witness, and the nurse, Walden

argues that there is no direct evidence of sexual abuse and there is no physical evidence

of sexual abuse or trauma by either the nurse or police. A child victim’s testimony

alone, however, is sufficient to support a conviction for aggravated sexual assault of a

child or indecency with a child. TEX. CODE CRIM. PROC. ANN. art. 38.07 (West 2005);

Abbott v. State, 196 S.W.3d 334, 341 (Tex. App.—Waco 2006, pet. ref’d); Tear v. State, 74

S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet. ref’d); see also Cantu v. State, 366 S.W.3d

771, 775 (Tex. App.—Amarillo 2012, no pet.).




Walden v. State                                                                    Page 5
       The courts will give wide latitude to testimony given by child victims of
       sexual abuse. Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990)
       (en banc). The victim’s description of what happened need not be precise,
       and the child is not expected to communicate with the same level of
       sophistication as an adult. Soto, 267 S.W.3d at 332. Corroboration of the
       victim’s testimony by medical or physical evidence is not required. Id. at
       332; Ozuna v. State, 199 S.W.3d 601, 606 (Tex. App.—Corpus Christi 2006,
       no pet.).

Cantu, 366 S.W.3d at 776.

       A 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). Here, by finding Walden guilty, the jury

obviously believed Jane’s testimony.        As the reviewing court, we “should not

substantially intrude upon the jury’s role as the sole judge of the weight and credibility

of witness testimony.” Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).

Viewing all the evidence in the light most favorable to the verdict, we conclude that a

rational trier of fact could have found that Walden committed the offense of continuing

sexual abuse of a young child beyond a reasonable doubt. Issue two is overruled.

       In issue one, Walden complains of the admission of extraneous-offense evidence.

This evidence consists of two categories: (1) Kate’s testimony that Walden sexually

abused her; and (2) Jane’s and Kate’s testimony of physical abuse, including

deprivations of food, by Walden and their mother Karen. We review the trial court’s

admission of extraneous-offense evidence for abuse of discretion, and as long as the

trial court’s ruling is within the “zone of reasonable disagreement,” there is no abuse of

discretion. See Newton v. State, 301 S.W.3d 315, 317 (Tex. App.—Waco 2009, pet. ref’d)

(citing De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex. Crim. App. 2009)).


Walden v. State                                                                      Page 6
        Over Walden’s Rule 404(b) and 403 objections, Kate testified that Walden rubbed

her vagina with his hand and rubbed it with lotion. She could not say how many times

it happened, but it happened more than five times. Kate also said that Walden touched

her anus with his hand and digitally penetrated her anus more than once. She also

testified that she saw Walden walking around the house without clothes more than

once.

        In both the trial court and on appeal, among other reasons, the State has asserted

that Kate’s testimony of similar sexual abuse by Walden was admissible to rebut his

defensive theory of fabrication. The State may present extraneous-offense evidence to

rebut a theory of fabrication. Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008);

Newton, 301 S.W.3d at 317-18. The extraneous misconduct must be at least similar to the

charged offense. Newton, 301 S.W.3d at 317. The defense’s opening statement can open

the door to the admission of extraneous-offense evidence to rebut a defensive theory of

fabrication raised in the opening statement. Bass, 270 S.W.3d at 563 & n.7; see also Jones

v. State, No. 10-13-00006-CR, 2013 WL 5494678, at *3-4 (Tex. App.—Waco Sept. 26, 2013,

pet. ref’d) (mem. op., not designated for publication).

        In the defense’s opening statement, defense counsel suggested that Jane did not

like doing household chores and Walden’s discipline and thus became resentful of

Walden:

               At some point in time [Jane] did not like this and became resentful
        of Mr. Walden. Mr. Walden’s methods might be unconventional to some
        but they’re not illegal. … However, … [Jane], … when asked to do her
        chores, became upset, which is, I think you will hear, customary. She was
        upset about it and ran away from home. Mr. Walden called the police to

Walden v. State                                                                      Page 7
       report this child running away from home. … Again, the police
       responded and eventually located [Jane] where she made these allegations
       of physical and sexual abuse. She had never -- there’s no evidence that
       she had ever indicated or alleged this type of abuse prior to this occasion,
       even though she had many opportunities to say so.

             There’s no physical evidence to support these allegations of sexual
       abuse. She’s changed her story several times and her story continues to
       change.

       In cross-examining Detective Shannon Kimberling, who testified as an expert on

grooming in child sexual-abuse cases, the defense asked Kimberling about false

outcries. She said that she has investigated cases where the child made a false outcry

and that false outcries do occur, and that she has seen them occur with stepparents.

And in cross-examining Lieutenant Jones, the defense elicited testimony from him that

he had investigated cases where children made false allegations of sexual abuse.

       Because Walden raised the defensive theory of fabrication in the defense’s

opening statement and in cross-examining State’s witnesses before Kate’s testimony

about sufficiently similar sexual abuse by Walden, the trial court did not abuse its

discretion in admitting the extraneous-offense evidence pertaining to the alleged sexual

abuse of Kate by Walden. See Jones, 2013 WL 5494678, at *3-4.

       Under Rule 403, otherwise relevant evidence “may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence.” TEX. R. EVID. 403.

       [A] trial court, when undertaking a Rule 403 analysis, must balance (1) the
       inherent probative force of the proffered evidence along with (2) the
       proponent’s need for that evidence against (3) any tendency of the

Walden v. State                                                                       Page 8
          evidence to suggest decision on an improper basis, (4) any tendency of the
          evidence to confuse or distract the jury from the main issues, (5) any
          tendency of the evidence to be given undue weight by a jury that has not
          been equipped to evaluate the probative force of the evidence, and (6) the
          likelihood that presentation of the evidence will consume an inordinate
          amount of time or merely repeat evidence already admitted. Of course,
          these factors may well blend together in practice.

Newton, 301 S.W.3d at 319 (quoting Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex.

Crim. App. 2006) (footnote omitted)).

          “Rule 403 ‘envisions exclusion of [relevant] evidence only when there is a ‘clear

disparity between the degree of prejudice of the offered evidence and its probative

value.’” Id. at 322-23 (quoting Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App.

2009)). Considering the above factors, we cannot say that there is a “clear disparity”

between the danger of unfair prejudice posed by Kate’s testimony and its probative

value. Thus, the trial court did not abuse its discretion by overruling Walden’s Rule 403

objection to Kate’s testimony.

          We next address the trial court’s admission of extraneous-offense evidence of

physical abuse of Jane and Kate by Walden. When the State notified the trial court that

it was going to get into domestic-violence testimony in its direct examination of Jane,

Walden lodged relevance and extraneous-offense objections and an objection that, if the

evidence was relevant, “it would be more prejudicial than probative.”1

          Jane gave the following testimony about the alleged physical abuse: Walden

(and Karen) withheld food from the girls; fed them very little food; at times refused to

feed them a meal as punishment; locked the girls in their bedroom at night and put

1
    We thus disagree with the State’s assertion that Walden did not make a Rule 403 objection.

Walden v. State                                                                                  Page 9
screws in their bedroom window so they could not sneak out and get food; strip-

searched them when they got home from school to make sure they were not sneaking in

food; made them run laps around the house before meals; and gave them bare-bottom

spankings. Jane also said that her hair was pulled and that Walden hit her in the eye

with his fist.

        “An error [if any] in the admission of evidence is cured where the same evidence

comes in elsewhere without objection.” Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim.

App. 2004) (citing Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)); see Leday v.

State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (“Our rule . . . is that overruling an

objection to evidence will not result in reversal when other such evidence was received

without objection, either before or after the complained-of ruling.”). “This rule applies

whether the other evidence was introduced by the defendant or the State.” Leday, 983

S.W.2d at 718.

        The State notes that evidence of these extraneous acts was admitted without

objection in the testimony of Lieutenant Jones, Hodges, and Kate. Thus, error, if any, in

allowing the introduction of these extraneous offenses was cured when the same

evidence was admitted elsewhere without objection. We overrule Walden’s first issue.

        Walden’s third issue asserts that his life sentence is grossly disproportionate and

excessive.2 A defendant must complain or object in the trial court about an allegedly


2
  Generally, a sentence within the statutory range of punishment for an offense is not excessive, cruel, or
unusual punishment. See Winchester v. State, 246 S.W.3d 386, 389 (Tex. App.—Amarillo 2008, pet. ref’d);
Alvarez v. State, 63 S.W.3d 578, 580 (Tex. App.—Fort Worth 2001, no pet.). A narrow exception to this rule
is recognized where a sentence is grossly disproportionate to the offense. See Moore v. State, 54 S.W.3d
529, 542 (Tex. App.—Fort Worth 2001, pet. ref’d); see also Harmelin v. Michigan, 501 U.S. 957, 1004-05, 111

Walden v. State                                                                                    Page 10
disproportionate sentence to preserve his complaint for appeal.                      Ham v. State, 355

S.W.3d 819, 825 (Tex. App.—Amarillo 2011, pet. ref’d); Gertz v. State, No. 10-11-00008-

CR, 2012 WL 3799146, at *2 (Tex. App.—Waco Aug. 30, 2012, no pet.) (mem. op., not

designated for publication) (citing Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.—

Houston [1st Dist.] 2006, no pet.); and Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—

Houston [1st Dist.] 1997, pet. ref’d)). Because Walden did not raise his complaint about

his sentence in the trial court, issue three is not preserved and is thus overruled. TEX. R.

APP. P. 33.1.

        Having overruled all of Walden’s issues, we affirm the trial court’s judgment.




                                                          REX D. DAVIS
                                                          Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 4, 2014
Do not publish
[CRPM]




S.Ct. 2680, 2707, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring); Solem v. Helm, 463 U.S. 277, 290-92, 103
S.Ct. 3001, 3010-11, 77 L.Ed.2d 637 (1983); McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992).

Walden v. State                                                                                     Page 11
