                                     In The

                               Court of Appeals

                    Ninth District of Texas at Beaumont

                              __________________

                              NO. 09-18-00399-CR
                              __________________

           JOHNATHON CHRISTIAN MACDONALD, Appellant

                                        V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                On Appeal from the 435th District Court
                     Montgomery County, Texas
                   Trial Cause No. 17-06-07133-CR
__________________________________________________________________

                         MEMORANDUM OPINION

      A grand jury indicted Appellant Johnathon Christian MacDonald for

aggravated sexual assault of his daughter, J.B., who was under the age of six. See

Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(b). Specifically, the indictment

alleged that MacDonald “intentionally or knowingly” caused his “sexual organ to

contact and/or penetrate the anus of J.B., a child who was then and there younger

than 6 years of age[.]” The jury convicted MacDonald, and the trial court sentenced


                                        1
him to forty-five years of confinement. In three appellate issues, MacDonald

challenges (1) the sufficiency of the evidence, (2) the trial court’s exclusion of

alternative perpetrator evidence, and (3) the trial court’s admission of certain audio

recordings of the complainant over the defense’s objection. We affirm the trial

court’s judgment.

                                   I. Background

      A patrol officer for the Conroe Police Department testified that in May 2017,

he was dispatched to an apartment complex in Montgomery County to investigate a

report of a possible aggravated sexual assault of a child. The officer arrived at the

scene and spoke with T.T., who told him she babysat MacDonald’s daughter, J.B.,

in her apartment along with her own three-year-old son, K.S. She told the officer

that earlier that evening before MacDonald came to pick up J.B., she found her son

naked in the corner of his bedroom with J.B.’s head in his lap.

      After the officer interviewed T.T. and took her statement, he then contacted

CPS. The officer told the jury that he took steps to ensure CPS addressed the

situation as soon as possible, because he had concerns about MacDonald’s continued

access to J.B. if the child stayed with MacDonald in his apartment. He testified that

a CPS caseworker met him at MacDonald’s apartment around 4:00 the next morning.

The officer described MacDonald’s demeanor as agitated and defensive when they

                                          2
explained why they were there. The officer stayed in the bedroom of the apartment

with MacDonald while the CPS caseworker spoke with J.B. in the living room. The

officer testified that after speaking with J.B., the caseworker decided to remove her

from the home. MacDonald then called his mother, J.J.M., to pick up J.B. The officer

returned to the station and prepared his report.

      A clinical psychologist from the Harris County Children’s Assessment Center

testified for the State. He explained the general reasons why children often make

delayed outcries rather than reporting abuse immediately. He testified that children

are usually abused by people who are around them and have access to them, who

most often are family members. The psychologist also explained that if a child has

been abused by a family member, they may have both positive and negative

emotions about that person; they may love the individual but hate the fact that they

have been abused.

      Detective Bret Irvine with the Conroe Police Department also testified. Once

assigned the case, he reviewed the patrol officer’s report. The detective told the jury

he then contacted the CPS caseworker to schedule a forensic interview for J.B.,

which he observed from a separate room. During the interview, he wanted to

corroborate the information T.T. provided and some of J.B.’s statements about her

interactions with MacDonald. Detective Irvine testified that J.B. provided sensory

                                          3
details during the forensic interview, which he viewed as significant in the

investigation. The detective also scheduled an appointment for J.B. to see a sexual

assault nurse examiner (SANE). The detective said that J.B.’s grandmother, J.J.M.,

brought her to these appointments; however, he had concerns that J.J.M. was not

being protective of J.B., did not believe the abuse occurred, and might try to

contaminate J.B.’s recall. Detective Irvine testified that CPS eventually removed

J.B. from J.J.M.’s care.

      Detective Irvine testified that he also scheduled and observed a forensic

interview for K.S., T.T.’s son. The detective described T.T. as “concerned” and

“helpful.” Detective Irvine testified that T.T. recorded three conversations with J.B.

on her phone, and he had T.T. bring her phone to the police station so they could

download the files.

      Detective Irvine also told the jury he interviewed MacDonald, who denied

sexually abusing his daughter and advised Detective Irvine he believed his daughter

was lying. The detective described MacDonald as “very emotional” during the

interview. At the conclusion of the interview, MacDonald provided a written

statement again denying any inappropriate contact with his daughter. Detective

Irvine explained that the police did not collect any clothing or evidence from the

apartment because they were not provided a timeline for when the last incident of

                                          4
abuse may have occurred and therefore, had no idea what clothing they would need

to seize. The detective testified that when he reviewed the SANE’s report, the history

provided by J.B. was consistent with what she said in the forensic interview, and he

applied for an arrest warrant.

      The SANE testified regarding her examination of J.B. She conducted a

medical exam on J.B. a few weeks after the incident was reported. A redacted copy

of her report was admitted as evidence at trial. The SANE testified regarding the

contents of her report, which contained quoted language from J.B. regarding her

father assaulting her anally with his sexual organ. The SANE noted that J.B. had

excellent verbal skills for her age. The SANE testified that she did not find any

evidence of injury or trauma and explained why that is not uncommon. On cross-

examination, the SANE confirmed that the only information she had regarding anal

penetration came from J.B.

      The forensic interviewer testified as the outcry witness in this case. 1 She

explained that J.B. could not provide a full event narrative, which was consistent

with the child’s age. The interviewer testified that J.B. could answer some open-

ended questions, knew the difference between the truth and a lie, and promised to



      1
       Prior to her testimony, the trial court conducted a hearing outside the jury’s
presence and determined she was qualified to testify as the outcry witness.
                                          5
tell the truth. She testified that she asked J.B. what she liked about her dad, and J.B.

responded “his lovins.” The interviewer then asked J.B. to tell her about her dad’s

“lovins,” and she responded that he kisses her on the tongue. The forensic

interviewer told the jury how J.B. described her father sexually assaulting her, which

was consistent with the description contained in the SANE’s report. The interviewer

also testified regarding the sensory details J.B. provided.

      Following a hearing outside the jury’s presence, the trial judge ruled J.B. was

competent to testify. J.B. testified and described how her dad sexually assaulted her.

J.B.’s description of the abuse was similar to the information contained in the

SANE’s report and the outcry witness’s testimony.2 During J.B.’s testimony, J.B.

circled the male genitalia and an anus on anatomically correct drawings. J.B. said

that MacDonald told her not to scream, and she provided sensory details when asked

why she screamed. She said this was not something that was pretend; it was real.

      T.T., J.B.’s babysitter, also testified. T.T. testified she babysat J.B. for about

six months. T.T. contacted police because something happened with J.B. and her son

that concerned her. She testified she had been folding laundry and went to check on

J.B. and her son, K.S. T.T. testified that her son was naked from the waist down, and



      2
        J.B. described her father inserting his sexual organ into her anus, using the
terms “no-no,” “thing”” and “pee” to describe MacDonald’s sexual organ.
                                          6
J.B. had her head in his lap. After T.T. separated the children and spoke with J.B.

about what happened, T.T. had concerns about MacDonald. Later that night, T.T.

used her phone and recorded her conversations with J.B. After these conversations,

T.T. spoke with her husband, and they decided to call the police.

      The State sought to admit these recordings, but the defense objected based on

hearsay, which the trial court initially sustained. However, on cross-examination, the

defense questioned T.T. about whether she was a forensic interviewer and implied

that T.T. coached J.B. The State again sought to admit the recordings, arguing that

the defense had opened the door during its cross-examination. At that point, the trial

court admitted the recordings over defense objection, noting that the defense

“opened the door.” The State played T.T.’s recordings for the jury in which J.B. is

heard calling her dad a “meanie head,” explaining that she sucked on her daddy’s

sexual organ and had learned it from him. T.T. denied telling J.B. what to say.

      An expert in memory recall and how memories are formed testified for the

defense. He explained that a young child’s memory capability is considerably

limited when compared to that of older children and adults. The expert testified that

it was possible for children who viewed pornography to confuse that with something

that happened to them.



                                          7
      MacDonald testified at trial and denied molesting his daughter, having anal

sex with her, or touching her inappropriately. He said that CPS removed J.B. from

her mother in February of 2015 and placed J.B. with him. MacDonald testified that

J.B. lived with him primarily from June 2015 through May 2017. He told the jury he

believed his daughter lied about him.

Other Evidentiary Issues

      During the SANE’s testimony, the defense objected to the admission of her

redacted report. Specifically, J.B. reported to the SANE that sometimes her

grandfather with a “big beard” touched her private area with his hand and toilet

paper. This portion of the report was redacted, and the defense complained it wanted

the unredacted report admitted, because they wanted to present alternative

perpetrator evidence and objected on the basis that the exhibit was incomplete. The

trial court held a hearing outside of the jury’s presence, and the State argued that the

information was not relevant because this was nothing like what J.B. alleged against

MacDonald, it would lead to confusion of the issues, and it was more prejudicial

than probative. The trial court overruled the defense’s objection and admitted the

State’s redacted version of the report.




                                           8
                          II. Sufficiency of the Evidence

      We first address MacDonald’s third issue, in which he contends the evidence

was legally insufficient to prove beyond a reasonable doubt that he was the

perpetrator of the crime. When evaluating the legal sufficiency of the evidence, we

view all the evidence in the light most favorable to the verdict to determine whether

any rational factfinder could have found the essential elements of the offense beyond

a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 902 n.19 (Tex. Crim. App.

2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007). The jury is the sole judge of the witnesses’

credibility and weight to be given their testimony. Tate v. State, 500 S.W.3d 410,

413 (Tex. Crim. App. 2016). We defer to the jury’s responsibility to fairly resolve

conflicts in the testimony, weigh the evidence, and draw reasonable inferences from

basic facts to ultimate facts. See Hooper, 214 S.W.3d at 13. We presume that the

jury resolved conflicting inferences in favor of the verdict. See Brooks, 323 S.W.3d

at 889 n.13; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). “[We]

must evaluate all of the evidence in the record, both direct and circumstantial,

whether admissible or inadmissible.” Dewberry v. State, 4 S.W.3d 735, 740 (Tex.

Crim. App. 1999) (citation omitted).



                                         9
      Texas Penal Code Section 22.021 provides that a person commits aggravated

sexual assault if he intentionally or knowingly causes the penetration of the anus of

a child by any means or causes the anus of the child to contact the sexual organ of

another person, including the actor, and the victim is under the age of fourteen. See

Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B). A child victim’s testimony

alone is sufficient to support a conviction for aggravated sexual assault. See Tex.

Code Crim. Proc. Ann. art. 38.07(a), (b)(1). Furthermore, testimony regarding a

child victim’s outcry statement alone can be sufficient to support a conviction for

aggravated sexual assault. Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas

2002, pet. ref’d).

      Here, the jury had the benefit of both the victim’s testimony and outcry

witness testimony. The child victim, J.B., testified that her father put his sexual organ

in her anus, and the outcry witness provided similar testimony. Viewing the evidence

in the light most favorable to the verdict and deferring to the jury’s decision on the

weight and credibility of the testimony, we conclude that a reasonable factfinder

could have found MacDonald guilty of the aggravated sexual assault of J.B. beyond

a reasonable doubt. See id.; see also Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1);




                                           10
Tate, 500 S.W.3d at 413; Brooks, 323 S.W.3d at 902 n.19; Clayton, 235 S.W.3d at

778; Hooper, 214 S.W.3d at 13. We overrule MacDonald’s third issue.3

                             III. Evidentiary Rulings

      In his first issue, MacDonald complains the trial court erred by denying

admission of alternative perpetrator evidence. In support of this issue, he contends

that he should only have to prove probable cause to believe a third-party perpetrator

committed the crime to establish the requisite nexus for the admission of the

alternative perpetrator evidence, and that the application of the nexus requirement

and balancing under Texas Rule of Evidence 403 creates arbitrary and

disproportionate results denying him the right to present a defense under the Fifth,

Sixth, and Fourteenth Amendments. In his second issue, MacDonald asserts the trial

court erred by admitting the State’s evidence in the form of audio recordings of the

complaining witness.

      We review a trial court’s ruling on the admissibility of evidence for an abuse

of discretion. 4 Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). A trial

judge’s decision on the admission of evidence will not be reversed if it lies “within


      3
         We note that although J.B. alleged other sexual misconduct acts against her
father at trial, we limit our discussion to the acts alleged in the indictment.
       4
         Although we generally review evidentiary issues for an abuse of discretion,
we review constitutional issues de novo. See Martinez v. State, 212 S.W.3d 411, 423
(Tex. App.—Austin 2006, pet. ref’d) (citations omitted).
                                            11
the zone of reasonable disagreement.” Tillman v. State, 354 S.W.3d 425, 435 (Tex.

Crim. App. 2014).

A. Alternative Perpetrator Evidence

      In support of his first issue, MacDonald essentially makes two arguments.

First, he contends he established the requisite nexus between the alternate perpetrator

and the offense. Second, he claims that the nexus requirement and Rule 403

balancing are unconstitutional as applied.

      1. Nexus Requirement

      “Relevant evidence” is evidence generally admissible and is defined as

evidence that has “any tendency to make a fact more or less probable than it would

be without the evidence; and . . . the fact is of consequence in determining the

action.” Tex. R. Evid. 401. Texas Rule of Evidence 403, on the other hand, provides

that “[t]he court may exclude relevant evidence if its probative value is substantially

outweighed by a danger of . . . unfair prejudice, confusing the issues, [or] misleading

the jury[.]” Id. 403 (emphasis added). To be admissible, alleged alternative

perpetrator evidence must be sufficient, alone or in combination with other evidence

in the record, to show a nexus between the crime charged and the alleged alternative

perpetrator. Wiley v. State, 74 S.W.3d 399, 406 (Tex. Crim. App. 2002). Evidentiary

rulings rarely rise to the level of denying the constitutional right to present a

                                          12
meaningful defense. Potier v. State, 68 S.W.3d 657, 659 (Tex. Crim. App. 2002).

“The alternative perpetrator defense typically arises in ‘who done it’ cases where the

complaining witness does not know [her] attacker.” Ex Parte Huddlestun, 505

S.W.3d 646, 661 (Tex. App.—Texarkana 2016, pet. ref’d).

      The defense sought to admit evidence that J.B. made a statement to the SANE

regarding her grandfather touching her private area, specifically that “[h]e touched

my tee tee. With his hand. He used toilet paper on his hand to wipe me.” 5 This

statement bears no resemblance to the act the State charged MacDonald with. In the

excluded statements, J.B. does not accuse her grandfather of using his sexual organ

to touch her anus. Instead, she mentions that he touched her private area with toilet

paper to wipe her. The proffered alternative perpetrator evidence was not sufficient

on its own or in combination with other evidence to establish a nexus between the


      5
        In his brief, MacDonald references comments another babysitter and J.J.M.
made which he alleges were contained in a deputy’s incident report. He also
mentions comments K.S., the two-year-old, allegedly made in his forensic interview.
MacDonald argues these statements corroborate the alternate perpetrator evidence
pointing to not only the grandfather but also to K.S. as an assailant. This report is
not contained in the record, and our review of the record shows that MacDonald
never attempted to offer any such statements into evidence or make an offer of proof
regarding these statements. Our review of the record is confined to the evidence
before the trial court at the time of the ruling. See Whitehead v. State, 130 S.W.3d
866, 872 (Tex. Crim. App. 2004). Moreover, MacDonald failed to file a bill of
exception. See Tex. R. App. 33.2 (requiring a party to file a formal bill of exception
about matters that would not otherwise appear in the record). Accordingly, we do
not consider these statements in our analysis.
                                           13
crime charged and J.B.’s grandfather. Wiley, 74 S.W.3d at 406; Michaelwicz v. State,

186 S.W.3d 601, 617 (Tex. App.—Austin 2006, pet. ref’d); Martinez v. State, 212

S.W.3d 411, 424 (Tex. App.—Austin 2006, pet. ref’d) (concluding exclusion of

evidence was proper when alternative perpetrator evidence failed to establish a

connection between the complainant’s brother and the abuse alleged and any

suggestion the brother was an alternative perpetrator was “meager and speculative”).

The absence of the requisite nexus is especially true when J.B. positively identified

her father, rather than a stranger, as the one who penetrated her anus with his sexual

organ. See Huddlestun, 505 S.W.3d at 661; Ramirez v. State, No.14-05-00435-CR,

2006 WL 2345952, at *4 (Tex. App.—Houston [14th Dist.] Aug. 15, 2006, no pet.)

(mem. op., not designated for publication) (noting that the absence of a nexus was

especially true when the victim testified with certainty her father “did these things,”

even though she lived with other different male adults).

      Even if true, J.B.’s statement does not link her grandfather to the offenses for

which MacDonald was tried or even establish that the grandfather committed a

crime. See Wiley, 74 S.W.3d at 406–07; Ruiz v. State, 272 S.W.3d 819, 830 (Tex.

App.—Austin 2008, no pet.) (noting that allegations of abuse against a grandfather,

even if true, “would not bear on whether appellant also abused her”); Michaelwicz,

186 S.W.3d at 617. MacDonald does not point to any evidence showing the

                                          14
grandfather engaged in the conduct described in the indictment. Likewise, the trial

court could have reasonably concluded that the statements made about the

grandfather were not relevant to whether MacDonald committed the sexual assault

against J.B. as alleged in the indictment, as they bore no resemblance to the crime

charged. See Tex. R. Evid. 401. Because we have concluded the trial court did not

err in excluding the alternative perpetrator evidence, we need not determine if the

exclusion of that evidence prevented appellant from presenting a meaningful

defense. See Garcia v. State, 397 S.W.3d 860, 864 (Tex. App.—Houston [14th Dist.]

2013, pet. ref’d) (citing Ray v. State, 178 S.W.3d 833, 835 (Tex. Crim. App. 2005)).

      2. Unconstitutional as Applied

      “As applied” constitutional challenges are subject to the error preservation

requirement and must be objected to at trial. Reynolds v. State, 423 S.W.3d 377, 383

(Tex. Crim. App. 2014). Although MacDonald sought to admit alternative

perpetrator evidence, he never raised a constitutional objection or pointed out to the

trial court that the exclusion of the evidence prevented him from putting on a

meaningful defense. MacDonald failed to preserve his “as applied” constitutional

challenge. See id.

      We overrule MacDonald’s first issue.



                                         15
B. Audio Recordings

      MacDonald also complains the trial court erred by admitting audio recordings

of J.B. talking to her babysitter and discussing some of the inappropriate acts that

her father taught her. The State sought to admit these recordings and the defense

objected on the basis of hearsay. The trial court initially sustained the objection but

ultimately admitted the recordings following the defense’s cross-examination of

T.T. We view the evidence in the light most favorable to the trial court’s ruling

admitting these recordings. See Klein v. State, 273 S.W.3d 297, 304 (Tex. Crim.

App. 2008) (citations omitted).

      Typically, an out of court statement offered for the truth of the matter asserted

is considered hearsay. See Tex. R. Evid. 801(d). However, such consistent

statements are non-hearsay if they are offered to rebut an express or implied charge

that the declarant recently fabricated the testimony or acted from a recent improper

influence or motive. See id. 801(e)(1)(B). On cross-examination, the defense asked

the babysitter if she was “a trained forensic interviewer[,]” implying she may have

coached J.B., a theme the defense employed with other witnesses throughout the

trial. The State used the recordings to rebut the defense’s theory of inappropriate

questioning of J.B. or that T.T. coached her. See id. Accordingly, viewing the

evidence in the light most favorable to the trial court’s ruling, we cannot say that the

                                          16
trial court abused its discretion by admitting the recordings and allowing the State

to play them for the jury. See Klein, 273 S.W.3d at 304; see also Tillman, 354 S.W.3d

at 435. We overrule issue two.

                                  IV. Conclusion

      Having overruled all of MacDonald’s issues on appeal, we affirm the trial

court’s judgment.

      AFFIRMED.

                                                    _________________________
                                                         CHARLES KREGER
                                                              Justice

Submitted on December 27, 2019
Opinion Delivered March 4, 2020
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




                                         17
