                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-13-00121-CR

JOHN JAMES SCHOEPLEIN,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 19th District Court
                           McLennan County, Texas
                          Trial Court No. 2011-1359-C1


                         MEMORANDUM OPINION


      Appellant John James Schoeplein was charged by indictment with two counts of

aggravated sexual assault (Counts I & II) and two counts of indecency with a child

(Counts III & IV). A jury acquitted Schoeplein on Count I of the indictment, which

alleged that he intentionally or knowingly causing the penetration of the sexual organ

of L.L., a child younger than fourteen years of age and not his spouse, by means of his

sexual organ. But the jury found him guilty on Counts II, III, and IV of the indictment

and assessed his punishment at life imprisonment, twenty years’ confinement, and
twenty years’ confinement, respectively. The trial court ordered the sentences to run

consecutively. This appeal ensued.

                                 Sufficiency of the Evidence

        In his first three issues, Schoeplein contends that the evidence is insufficient to

support his convictions on Counts II, III, and IV. 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. Further,

direct and circumstantial evidence are treated equally: “Circumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it

Schoeplein v. State                                                                         Page 2
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).

        In this case, the State had to prove for Count II that, on or about October 1, 2004,

Schoeplein intentionally or knowingly caused the penetration of the sexual organ of

L.L., a child under the age of fourteen and not his spouse, by means of his finger. See

TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2013). For Count III,

the State had to prove that, on or about October 1, 2004, with the intent to arouse or

gratify his sexual desire, Schoeplein intentionally or knowingly engaged in sexual

contact with L.L., a child younger than seventeen years of age and not his spouse, by

touching L.L.’s genitals by means of his hand. See id. § 21.11(a)(1), (b-1), (c)(1) (West

2011). For Count IV, the State had to prove that, on or about October 1, 2004, with the

intent to arouse or gratify his sexual desire, Schoeplein intentionally or knowingly

engaged in sexual contact with L.L., a child younger than seventeen years of age and

not his spouse, by touching L.L.’s breast by means of his hand. See id.

        The evidence presented was as follows: S.L. testified that she married J.S. right

out of high school, and they quickly had two children—son T.L., born October 11, 1991,

and daughter L.L., born September 16, 1992. S.L.’s and J.S.’s relationship was abusive,

however, and they soon divorced. Any meaningful relationship between J.S. and T.L.

and L.L. also quickly ended.

        S.L. stated that she thereafter met Schoeplein while L.L. was still a toddler. S.L.

and Schoeplein married when S.L. became pregnant with her second son. S.L.’s mother

Schoeplein v. State                                                                    Page 3
testified that L.L. began calling Schoeplein her dad. S.L. and Schoeplein also had a

daughter together during their marriage, but the two eventually separated and then

divorced in April 2003.

        S.L. testified that after the divorce, she “broke.” She was very depressed and

often laid in bed. S.L.’s mother stated that she had concerns about S.L.’s mental health

and parenting abilities. S.L. dealt with her depression by sleeping a lot, resulting in

S.L.’s house being dirty, the children being dirty, and S.L.’s parents having to furnish

food for the children. S.L. acknowledged that she was not an active or good parent to

T.L. and L.L. at that time.

        S.L.’s parents both testified that T.L. and L.L. lived with them for a time after

S.L.’s and Schoeplein’s divorce. All four children also continued to see Schoeplein. L.L.

testified that in contrast to her mother’s house, Schoeplein’s house was spotless and had

a whole cabinet full of food.

        L.L. stated that Schoeplein had told her that he was not her biological father at

about the same time that he had separated from S.L. in 2002. L.L. was nine years old at

that time. L.L. said that after the divorce, Schoeplein then treated her more like a friend

than a daughter. L.L. testified that when she was at Schoeplein’s house, she was able to

do whatever she wanted. Schoeplein would provide them alcohol to drink even though

L.L. was only eleven or twelve years old at the time, but Schoeplein would not let T.L.

drink as much as he would let her drink. Schoeplein would also buy L.L. more new

things than her siblings. He would take her shopping for new clothes and shoes. S.L.’s

mother testified that Schoeplein was showing favoritism to L.L. at that time. S.L.’s

Schoeplein v. State                                                                  Page 4
mother stated that there was a period around that time when Schoeplein was picking

L.L. up from school and bringing her home late.        Schoeplein would also call L.L.

frequently, and they would talk on the phone for long periods of time. Schoeplein did

not act the same way with T.L.

        L.L. testified that the sleeping arrangements when the children stayed at

Schoeplein’s house were generally as follows: T.L. would sleep on the recliner, L.L.’s

half-brother would sleep on the floor, and L.L. and her half-sister would sleep in the

bed with Schoeplein. L.L. stated that Schoeplein always wore just his underwear to

bed. L.L. noted that there were times when she and Schoeplein were in the bed alone.

L.L. said that when she was eleven years old, Schoeplein would often rub her back. He

would put his hand underneath her shirt and bra and rub from the top of her shoulders

down to “where your butt and your back meet.” L.L. said that Schoeplein’s hands

would also sometimes “go off to the side” underneath the underwire of her bra and

onto the side of her breast. L.L. denied that Schoeplein ever put his hand on the full

front of her breast. L.L. stated that these backrubs happened for about a year.

        L.L. testified that one night when she was twelve years old, she was lying in the

bed with Schoeplein when he began rubbing her back. L.L.’s half-brother and half-

sister were sleeping on the floor.     L.L. was lying on her stomach when she felt

Schoeplein’s hand slide underneath her pants and reach around her hip. L.L. turned

onto her side away from Schoeplein and scooted away from him, but Schoeplein

scooted closer to her. L.L. said that Schoeplein then took off her pants and pulled down

her underwear. Schoeplein put his hand between her legs, and L.L. felt a really sharp

Schoeplein v. State                                                                Page 5
pain in her vagina being caused by Schoeplein’s hand. After Schoeplein moved his

hand away, he then put his penis inside her for “like a second.” When asked how she

knew it was his penis, L.L. replied that “[i]t definitely wasn’t his hand” and that it did

not feel the same. L.L. said that Schoeplein’s hand hurt worse than when he put his

penis inside her. She said that when it was over, Schoeplein just scooted back, flipped

over, and laid there while she put her pants back on.

        L.L. stated that this incident was the only time when Schoeplein put either his

penis or his fingers inside her vagina. L.L. explained, however, that, at other times,

Schoeplein had put his fingers “around the outside” of her vagina and had also

“grope[d]” her. L.L. clarified that in saying that Schoeplein had “grope[d]” her, she

meant that he had frequently grabbed and slapped her butt. L.L. also testified that

Schoeplein “fondle[d]” her, meaning that he would “grab my butt and rub underneath

my bra and rub my back a lot.”          L.L. stated that the sexual abuse happened at

Schoeplein’s house in Waco. L.L. said that Schoeplein also allowed his friends to grab

and slap her butt.     The friends also touched her breasts and made inappropriate

comments to her about them.

        L.L. testified that she continued to go over to Schoeplein’s house for about a year

and a half after he had sexually assaulted her. When asked why she continued to go

there, she replied, “I didn’t have anywhere else to go.” L.L. stated, however, that she

felt the need to tell someone about the sexual assault because she hated herself and

because she thought that it might happen again. L.L. also said that she did not fully

understand how someone became pregnant and, because she was not menstruating, she

Schoeplein v. State                                                                  Page 6
was concerned that she might be pregnant.

        When L.L. was thirteen years old, she initially told a couple of her friends that

she had had sex with one of Schoeplein’s friends at a party. L.L. then approached S.L.’s

boyfriend, who went directly to S.L., who in turn took L.L. to the Advocacy Center for

an interview. During the interview, L.L. said that she had had sex with a boy named

Josh on a Wednesday night at the Valley Mills First Baptist Church. L.L. testified at trial

that she had made up the story and that Josh did not exist. L.L. said that she thought

that if she said it was another kid, then he could not get in trouble yet she could still get

whatever help her mother said that she needed. L.L. also stated that she was scared and

not fully ready to talk about everything that had happened with Schoeplein. She did

not want to feel like she was ruining her family and hurting her siblings. L.L. said that

Schoeplein had also told her that if she ever told anyone about the abuse, he would tell

everyone that she was a liar.

        L.L. testified that after the Advocacy Center interview, she told her mother S.L.

that S.L.’s boyfriend had touched her inappropriately. L.L. said that as soon as her

mother starting asking her questions about it, she told her mother the truth—that it was

a dream and that, “No, he never touched me.” L.L. stated at trial that she wanted her

mother to find out that Schoeplein was the one who had really sexually assaulted her

but that S.L. completely dropped the subject once S.L. knew that L.L. was not accusing

her boyfriend.

        Former Valley Mills Chief of Police Tommy Roach testified that he was at the

Advocacy Center while L.L. was being interviewed.             He had concerns after the

Schoeplein v. State                                                                    Page 7
interview about whether L.L. was telling the whole truth because she was “real

evasive” in her answers to certain questions and would not look at the interviewer.

Chief Roach therefore interviewed L.L. himself. During the interview, L.L. told him

that the sexual assault did not actually happen in Valley Mills but rather in Waco. L.L.

also said that the boy named Josh was not the perpetrator. Because the sexual assault

did not happen in Valley Mills, Chief Roach referred the family to the Waco Police

Department.

        L.L. testified that she finally told her mother that it was Schoeplein who had

sexually abused her. L.L. stated that since the time when she identified Schoeplein as

her abuser, she has not taken that back or said it was anyone else. When asked why the

jury should believe her, L.L. replied that she is stronger now and tired of her life being

controlled by fear.

        Psychologist Dr. William Lee Carter testified that he had not evaluated or

counseled L.L. but that he was there as an educational source for the jury. He stated

that grooming refers to the pulling of a child into victimization and that it commonly

occurs by giving special status or favor to a child. When asked what in this case

suggested that L.L. had been groomed, Dr. Carter replied that L.L. was basically

allowed to do whatever she wanted when she went over to Schoeplein’s house and that

Schoeplein would give her alcohol and back rubs and treat her favorably. Dr. Carter

also testified that it would be fair to say that L.L.’s different allegations could be

interpreted as cries for help. All of the different allegations occurred within about one

month, and then once L.L. identified her assailant in 2006 as Schoeplein, the details

Schoeplein v. State                                                                 Page 8
remained consistent. Dr. Carter stated that he was not saying that L.L. was being

truthful or untruthful. He acknowledged that it could cause concern that L.L. has

changed her story several times, but he also said that L.L.’s consistency since identifying

Schoeplein as the perpetrator was one of the things one would look for in a reliable

outcry.

        Amy Perkins, the Executive Director for the Advocacy Center for Crime Victims

and Children and the custodian of records for the agency, testified that L.L. began

therapy on January 27, 2009. L.L. had a total of fourteen therapy sessions, ending on

April 11, 2012. She also attended six group sessions. Perkins said that L.L. would fill

out a survey at each session for the therapist to use as a tool. These records were

admitted into evidence. In these surveys, L.L. had at times responded “[n]ever” to the

statements, “I feel that what happened was my fault” and “I feel dirty or ashamed

about what happened to me.” Perkins stated, however, that L.L. had also consistently

shown concern in the surveys that she often felt like everyone knew what had

happened to her.       L.L. was also experiencing anxiety-based behaviors, and she

struggled with the continued contact that Schoeplein had with her siblings. When

speaking on the phone with Schoeplein, her siblings would tell him that they loved and

missed him.

        Schoeplein first argues that the evidence is insufficient to support his convictions

on Counts II, III, and IV because the jury was not a rational trier of fact by believing

L.L., an admitted and documented liar who: (1) materially changed her story from the

date she alleged he assaulted her to the date of trial and (2) admitted to other lies,

Schoeplein v. State                                                                   Page 9
including making another false accusation of the same nature against her mother’s

longtime and present boyfriend. But the jury is the exclusive judge of the facts, the

credibility of the witnesses, and the weight to be given to the witnesses’ testimony.

Jaggers v. State, 125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). 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 Schoeplein guilty, the jury

obviously believed L.L.’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).

Furthermore, a child victim’s testimony alone 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).

        Schoeplein argues, however, that no rational jury could decide to believe L.L.’s

testimony. Schoeplein states that this is not a question of witness demeanor. Rather,

Schoeplein claims that the only evidence supporting the allegations in this case was

from L.L., that L.L. is an admitted and documented liar, and that L.L. is therefore

simply not believable by a rational jury. Schoeplein likens this case to the hypothetical

in Brooks v. State, 323 S.W.3d 893, 906-07 (Tex. Crim. App. 2010):

        The store clerk at trial identifies A as the robber. A properly authenticated
        surveillance videotape of the event clearly shows that B committed the
        robbery. But, the jury convicts A. It was within the jury’s prerogative to
        believe the convenience store clerk and disregard the video. But based on
        all the evidence the jury’s finding of guilt is not a rational finding.

Schoeplein v. State                                                                     Page 10
But this case is distinguishable from the Brooks hypothetical. The jury here did not

disregard affirmative evidence establishing that Schoeplein did not commit the actions

alleged in Counts II, III, and IV of the indictment. The jury in this case merely believed

L.L.’s testimony during which she explained why she had told several lies before

identifying Schoeplein as her abuser and confirmed that she has been consistent in her

allegations since identifying Schoeplein as her abuser.

        Schoeplein next argues that the evidence is insufficient to support his conviction

on Count III because the State failed to prove that on or about October 1, 2004, in

McLennan County, Texas, with the intent to arouse or gratify his sexual desire, he

intentionally or knowingly engaged in sexual contact with L.L. by touching her genitals.

More specifically, Schoeplein claims that the evidence is insufficient because L.L. did

not testify, nor was there any outcry testimony, that Schoeplein actually touched her

genitals within the meaning of the statute.

        The Court of Criminal Appeals has held that the term “genitals” in the indecency

statute “includes more than just the vagina in its definition; ... [it] includes the vulva

which immediately surrounds the vagina.” Clark v. State, 558 S.W.2d 887, 889 (Tex.

Crim. App. 1977). Additionally, child victims of crime are not expected to testify with

the same clarity and ability as is expected of mature and capable adults. Villalon v.

State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990); Wallace v. State, 52 S.W.3d 231, 235

(Tex. App.—El Paso 2001, no pet.). Consequently, a child’s use of unsophisticated

language will not render the evidence insufficient to establish guilt. Furthermore, as


Schoeplein v. State                                                                Page 11
stated above, a child victim’s testimony alone 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; Abbott, 196 S.W.3d at 341; Tear, 74 S.W.3d at 560.

        Here, L.L. testified that in addition to the time when Schoeplein sexually

assaulted her, Schoeplein had at other times put his fingers “around the outside” of her

vagina. This evidence is sufficient to establish that Schoeplein actually touched her

genitals within the meaning of the statute.

        Finally, Schoeplein argues that the evidence is insufficient to support his

conviction on Count IV because the State failed to prove that on or about October 1,

2004, with the intent to arouse or gratify his sexual desire, he intentionally or knowingly

engaged in sexual contact with L.L. by touching her breast.            More specifically,

Schoeplein claims that the evidence is insufficient because L.L. did not testify, nor was

there any outcry testimony, that Schoeplein actually touched her breast within the

meaning of the statute.

        L.L. testified that when Schoeplein was giving her back rubs, his hands would

sometimes “go off to the side” underneath the underwire of her bra and onto the side of

her breast. L.L. denied, however, that Schoeplein ever put his hand on the full front of

her breast. Schoeplein argues that this is not indecency with a child by contact on the

breast. Schoeplein contends that even if we believe L.L., he at most touched her chest,

which is insufficient proof to support his conviction. See Nelson v. State, 505 S.W.2d 551,

552 (Tex. Crim. App. 1974) (holding that testimony “He rubbed my chest” was

insufficient proof to sustain averment in indictment that appellant did “place his hand

Schoeplein v. State                                                                 Page 12
against the breasts” of victim).

        We disagree with Schoeplein. L.L.’s specific testimony that Schoeplein touched

the side of her breast is sufficient to establish that Schoeplein actually touched her

breast within the meaning of the statute.

        Viewing all the evidence in the light most favorable to the verdict, the evidence is

sufficient to support Schoeplein’s convictions on Counts II, III, and IV. We overrule

Schoeplein’s first three issues.

                              Extraneous-Offense Evidence

        In his fourth issue, Schoeplein contends that the trial court erred and abused its

discretion by allowing the State to present evidence of his giving other children alcohol

because: (1) evidence of this alleged extraneous offense presented to the jury during the

guilt/innocence phase was not admissible based upon the relationship between L.L.

and him; (2) he did not “open the door” to the admission of such evidence; and (3) the

probative value of admitting such evidence was substantially outweighed by the

danger of unfair prejudice, confusion of the issues, and clearly misled the jury.

        During the guilt/innocence phase of the trial, S.L.’s sister Suzanne testified as

follows:

                Q.    [BY Defense Counsel] Did you ever -- you spent time over at
        [S.L.] and John’s house?

                A.    Yes.

                Q.    And it was fun?

                A.    Yes.


Schoeplein v. State                                                                  Page 13
                      [Defense Counsel]: That’s all, Judge. I pass the witness.

                                REDIRECT EXAMINATION

        BY [Prosecutor]:

                Q.    Why was it fun at the defendant’s house?

                A.    Because we got to do what we wanted to do.

              Q.     And by doing what you wanted to do, what would he let
        you do that you wanted to do as a teenager?

                A.    Drink alcohol, smoke cigarettes, whatever we wanted to do.

              Q.     And the alcohol and the cigarettes, did you furnish those or
        were those furnished to you?

                A.    They were furnished to us or to me.

                Q.    By who?

                     [Defense Counsel]:      Object, Your Honor.         Calls for
        extraneous. This was all in the motion in limine the Court granted.

                     [Prosecutor]: Your Honor, the defendant opened the door
        by asking about the fun at the defendant’s house.

                     [Defense Counsel]: No. She testified on direct, Judge, that
        she enjoyed going over there. I said, “You went over there because you
        had fun.” I didn’t go into any details about that. The State set that up.

                      THE COURT: Overruled.

                Q.    (BY [Prosecutor]) Who furnished the alcohol --

                      [Defense Counsel]: Your Honor, at this point I’m going to
        object under 403, then.

                      THE COURT: Overruled.

                      [Defense Counsel]: I’m going to ask the Court to make
        findings on that, make that balancing test, Judge.

Schoeplein v. State                                                                  Page 14
                      THE COURT: All right. I find this matter is admissible to
        explain the relationship here. I also find that the relevance outweighs any
        -- the probative value of the relevance outweighs any prejudicial value.

               Q.    (BY [Prosecutor]) Suzanne, who gave you the cigarettes and
        the alcohol?

                A.    John.

                Q.    You mean the defendant?

                A.    Yes.

        ….

             Q.     (BY [Prosecutor)] And is this the same John Schoeplein that
        would give you cigarettes and alcohol when you were a minor?

                A.    Yes.

              Q.     How old were you when this was going on, the cigarettes
        and the alcohol?

                A.    12.

                Q.    So this is during the time that he was still married to your
        sister --

                A.    Yes.

                Q.    -- that it started?

                A.    Yes.

                      [Prosecutor]: Pass the witness, Your Honor.

                                 RECROSS-EXAMINATION

        BY [Defense Counsel]:

              Q.      And during this time your sister, [S.L.], was there drinking
        with you-all, wasn’t she?

Schoeplein v. State                                                                   Page 15
                A.    Occasionally, yes.

                      [Defense Counsel]: Pass the witness.

                            FURTHER REDIRECT EXAMINATION

        BY [Prosecutor]:

               Q.    You said that occasionally your sister was there. Was that
        every time that you drank?

                A.    No.

                Q.    The majority of the time, was your sister there?

                A.    No.

                Q.    The majority of the time, was it you and the defendant?

                A.    Yes.

        After Suzanne, Sarah, another of S.L.’s sisters, then testified as follows:

                A.    Well, [Schoeplein] was a very good friend to have for an
        independent teenage girl. I mean, he would let us -- he wouldn’t tell on
        me if I was smoking, and he allowed us to drink.

                Q.    [By Prosecutor] Now, when you say, “us,” who do you
        mean?

              A.    Well, anybody that was with me. Any of my friends that
        were with me would be able to drink as well.

                Q.    And there is no doubt the defendant knew you weren’t 18?

                A.    Oh, yeah.

                Q.    You weren’t close to 21 but not 18 either.

                A.    Yeah.

                Q.    You were in high school?

Schoeplein v. State                                                                   Page 16
                A.    Yeah.

                Q.    So you were underage?

                A.    Yes.

              Q.     Did you bring alcohol over and drink it there, or was it
        provided to you?

                A.    It was provided.

                Q.    What was provided?

               A.      It would depend. There was wine coolers. There was -- he
        made Amaretto shots. That was one of my favorites. He had a whole lot
        of liquor that he would make shots with and stuff.

                Q.    And would your sister, [S.L.], know this was going on?

              A.      She would turn a blind eye to it. She got mad if she knew I
        was drinking. She didn’t allow me to drink, but she wasn’t going to tell
        on me either.

                Q.    Did you stay at her house and do this --

                A.    Yes.

                Q.    -- and not drive around?

                A.    That is correct.

              Q.    Okay. Were these parties that your sister and the defendant
        kind of had for you and your friends, or were these parties with the
        defendant?

               A.     It wasn’t -- there was only one party that I can think of
        offhand that was actually a party we went to, and that was whenever he
        lived in his house on Erath before he moved in with [S.L.] out on the land.
        Other than that, it was there at the house, so we just made a party. It
        wasn’t like he was planning a party.

                Q.    Was your sister involved in these parties, [S.L.]?

Schoeplein v. State                                                                   Page 17
                A.    The one on Erath, yes. She was there. She didn’t -- she
        didn’t plan the parties, but, I mean, she was there, like, talking to
        everybody and everything like that. If she knew I was going to be
        drinking, she didn’t -- and especially like on the one at Erath, she got mad
        at me and didn’t want people giving me alcohol, but I drank and didn’t
        really care what she said.

                Q.    Did the defendant get mad at you that you drank?

                A.    No.

                Q.     Did you know the defendant gave Suzanne, your younger
        sister, alcohol too?

               A.     Suzanne didn’t drink in front of me. I did not know that he
        was -- that that was happening with her too. She really wasn’t a part of
        when I would go over there and drink because she was my little sister,
        and I would say, “Shoo.” I didn’t really want her to be there because I
        didn’t want her telling on me.

              Q.    So at what point did you find out the defendant gave
        Suzanne alcohol too?

               A.     It was -- you now [sic], I’m not actually for sure because I
        didn’t really think it was a big deal, so I really didn’t -- I really didn’t
        think much about it.

                      [Prosecutor]: I’ll pass the witness.

                                RECROSS-EXAMINATION

        BY [Defense Counsel]:

              Q.      [Sarah,] just a few questions to follow up on what you have
        already testified to on direct. You indicated that your sister, [S.L.], was
        present. Is that correct?

                A.    Yes.

              Q.      And she was present on the times that you were drinking
        alcohol. Is that right?


Schoeplein v. State                                                                    Page 18
                 A.   Yes. She was there at the house.

               Q.      And as you testified to, she turned a blind eye to it and
        didn’t tell your parents. Is that correct?

                 A.   That is correct.

                 Q.   And [S.L.] was an adult at that point in time too. Is that
        right?

                 A.   Yes.

               Q.     So you stated that on occasion that she would get onto you
        for drinking. Is that right?

                A.     She wouldn’t get onto me. It wasn’t like a lashing after the
        fact. It was if she came in and saw me taking a shot, she was like, “Where
        did you get that? What are you doing?” It was one of those types of
        things. But then when I told her, “I’m taking a shot,” she would walk
        away, but I knew she was not happy with me.

              Q.      But you knew that -- you knew she wouldn’t tell your
        parents?

                 A.   Yes.

               Q.     Okay. And there were times that [S.L.] drank with you. Is
        that correct?

                 A.   Not until I got older.

                      [Defense Counsel]: I’ll pass the witness.

                           FURTHER REDIRECT EXAMINATION

        BY [Prosecutor]:

                 Q.   So, Sarah, are you making shots with this stuff sometimes?

               A.    I did make shots after -- I mean, I would make mixed drinks.
        After he would go to bed, you know, I would help myself to the alcohol,
        but mainly it was him. He’s the one who taught me how to make the
        Amaretto shots and the little cocktails.

Schoeplein v. State                                                                   Page 19
               Q.    You’re saying he’s the one that taught you. You’re talking
        about the defendant?

                A.    Yes.

        ….

               Q.    (BY [Prosecutor]) And how old would you have been when
        the defendant taught you how to make shots and mixed drinks?

                A.    14.

                      [Prosecutor]: I’ll pass the witness.

                      [Defense Counsel]: No questions.

        ….

                      THE COURT:

        ….

                      (Open court, defendant present, no jury)

                      Before we bring the jury back in, I want to get a matter on
        the record here. If this case goes to an appellate court, it might be helpful
        to have a clear record. Earlier when the issue of the extraneous conduct
        regarding the defendant provided alcohol to the aunts of the complaining
        witness – that is the relationship, isn’t it?

                      [Prosecutor]: (Moving head up and down)

                      THE COURT: That came up. I wanted to kind of put on the
        record why I thought that was relevant and why I let it come in, because it
        was a little confusing about the way it all happened. When you look at
        this diagram on the board here that outlines the family tree of the folks
        involved in this case, and it’s a pretty complex relationship, and a great
        deal of time has been spent up to this point both by the State and the
        defense explaining that relationship and the context in which it occurred,
        and cross-examination of the defense has emphasized that these aunts of
        the complaining witness frequently visited the home of the defendant and
        that they had a normal, wonderful, caring, close-knit relationship, and

Schoeplein v. State                                                                     Page 20
        that point was emphasized a number of times, and I think the jury could --
        it was emphasized for a good tactical purpose on the part of the defense to
        show that there weren’t any problems in the family, that it was a normal
        type relationship, and the last -- the witness -- I can’t remember which one
        it was where the actual alcohol incident came in was Suzanne … ?

                      [Prosecutor]: Suzanne ….

                       THE COURT: The defense was emphasizing how much fun
        it was for these young ladies at the time -- they were young ladies at the
        time to go there, and then the State asked the question, “Why was it fun to
        go there,” and that’s when the issue came up, and in conducting a
        balancing test about whether the probative value outweighed the
        prejudicial effect, I made the balancing test and ruled as I did, and I did it
        because I think it gives context to the relationship of the parties and the
        whole issue here, and I think the jury was entitled to have a complete
        understanding of the relationship.

                      [Prosecutor]: Your Honor, I do think Rule 403 requires you
        to find that the probative value of the extraneous offense is substantially
        outweighed.

                      THE COURT: And I do make that finding.

                     [Prosecutor]: Okay. The danger of, and I think it would be
        misleading the jury, that that line of questioning could be misleading.

                      THE COURT: That’s what I’m trying to say, maybe not very
        artfully.

                     [Prosecutor]: Okay. Or would leave a false impression of
        the kind of person the defendant was and what it was like to be over
        there.

                      THE COURT: Correct. I just wanted to get all that on the
        record.

        Subsequently, T.L. also testified as follows:

              Q.     [BY Prosecutor]      Was there drinking at the defendant’s
        house with you?

                A.    Yes.

Schoeplein v. State                                                                      Page 21
                Q.    Was there drinking with your sister, [L.L.]?

                A.    Yes.

        ….

                Q.    So who would give you this alcohol?

                A.    John J. Schoeplein would give me the alcohol.

        ….

              Q.    Are you-all going out and buying this yourselves or is this
        something that is always at the defendant’s?

              A.      That was something that was always there, you know, had
        some in the refrigerator. It was never bought to go out and intentionally --

              Q.   So it was never like you went to the store and picked out
        what you wanted?

                A.    No, it was nothing like that. No, ma’am.

                Q.    Were these drinks mixed for you by the defendant?

                A.    Yes, yes. I never mixed them myself, no.

                Q.    And how old were you when this started?

                A.    I would say approximately 13, 14, around that age.

                Q.    So that would have made [L.L.] 12 or 13?

                A.    Yes.

        Any error in the admission of evidence is rendered harmless if the same or

similar evidence is subsequently admitted without objection. See Lane v. State, 151

S.W.3d 188, 193 (Tex. Crim. App. 2004) (“‘An error [if any] in the admission of evidence

is cured where the same evidence comes in elsewhere without objection.’”) (quoting

Schoeplein v. State                                                                    Page 22
Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)); 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.”). Therefore, assuming without deciding that

the trial court abused its discretion in overruling Schoeplein’s objections to Suzanne’s

testimony about Schoeplein providing alcohol to her as a child, we conclude that the

error was harmless because Sarah and T.L. both testified without objection about

Schoeplein providing them alcohol when they were minors and because Sarah even

briefly responded to questioning about Schoeplein giving alcohol to Suzanne. We

overrule Schoeplein’s fourth issue.

        Having overruled all of Schoeplein’s issues, we affirm the trial court’s judgments

on Counts II, III, and IV of the indictment.




                                                   REX D. DAVIS
                                                   Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray concurs with a note)*
Affirmed
Opinion delivered and filed July 24, 2014
Do not publish
[CRPM]

       *(Chief Justice Gray concurs in the judgment to the extent it affirms the trial
court’s judgment. A separate opinion will not issue.)




Schoeplein v. State                                                                  Page 23
